I'm doing pretty well. Thank you. Good. All right. We'll start our arguments for the day with the case of the United States. No, let's see. Mac versus Pope Potosky. May please the court. Sarah Aliabadi for plaintiff Pellant Derrachback and I'd like to reserve two minutes for a bottle please. It's granted. This court should reverse because Mr. Mac perfectly and strictly complied with the Greenness procedures as written. Miss Miss Aliabadi, what did DC ADM 804 specifically require here and what did your client do that he considers to be substantial compliance? Your Honor, DC ADM 804 required Mr. Mac to provide photo copies at the third final stage of review. Mr. Mac contends that that's exactly what he did when he submitted his documents to the first level of review. He submitted everything that was necessary the second level and the third level of review and in fact the district court assumed that Mr. Mac did supply the required photo copies when he first submitted his documentation at the third level
. What Mr. Mac contends is that he strictly and perfectly complied with all of the procedures at the first stage. And our yes of substantial compliance you're arguing that he strictly and perfectly complied. Your Honor, we're arguing both we are arguing that he strictly and perfectly complied with the procedures as written and that is what the court should look at. But even if the court looks at the additional request by officer Watson for more copies of the appeal to the facility manager which came after the three levels of review, even if the court looks at that he still substantially complied with that request by providing his own originals or he got a notice that he had to supply copies or his appeal would be dismissed. Now he had supplied copies of other documents I mean actual photo copies but he failed to supply the appeal to the facility manager signed and dated correct. That is what the prison contends your Honor but actually the district court assumed that Mr. Mac provided the required documentation at all three stages of review on page 20 of its opinion which is at appendix page 48 to 49. The district court says even if Mac included the photo copies of his appeal the fact is that he was informed they were missing and in fact the prison concedes that it can't prove Mac didn't attach the required documents including the photo copies to his appeal for final review. So you're arguing burden here you're arguing they had that burden and they didn't prove it based. That's true they had that burden and they didn't prove it it's their burden to prove that he failed to exhaust but even if we look at their later request for additional copies let's say they lost the copies that were provided and they asked Mr. Mac also substantially complied with that under this court's jurisprudence. Mr. Mac provided his originals originals are better than photo copies your Honor he was asked for copies from officer Watson and he provided his originals after. I thought he had copied the particular form it was requested. Your Honor the record refers to it as handwritten original copies I think the most reasonable reading of the record is he didn't have any more photo copies after the whole process was done so when officer Watson asked him for his photo copies saying that they were missing he just gave in his originals. But you can't say it was an original he copied it at that point in time did he not where they signed and dated from the original time frame your Honor I believe they were and honestly the record is unclear but he says he provided his handwritten originals and whether he recopied it out or more reasonably whether he just kept his original my assumption here
. But you're the moving party don't you think you have some obligation to tell us who's on first and tell us exactly what did happen here yes your Honor and I mean if you want to prevent a dismissal you have to say you know this is what I did it was my original I did supply and they must have lost it and they prevented me because the photo copy was broken I mean this is this is like a guessing game we're supposed to make a district was making assumptions. And you're saying the defendant has to fair it out what happened here seemed to me if he wants to pursue his case he's got obligations and in response to a notice the talks about photo copy he either has to provide that photo copy for at least alert the district court that the copy was broken he didn't do that did he. Well you're on our first of all the request that he received did he do that did he let the district court know the argument that is currently being made that the photo copy was broken did he say that he said that he provided his original copies and then later when it was claimed to be missing he provided his quote original handwritten copies that's on appendix page 260 that was in front of the court my question to you did he say to the district court I'm. Giving you my original handwritten because the copier was broken I complained about it but the prison did nothing about it did he say that to the district court he did not link it up he provided information that the copy was broken and he also did when did he say the copy was broken it is at appendix page 253 and that was before the district court yes after after the ruling. At what what stage he didn't say that when he supplied the handwritten copies did he. When he supplied the handwritten copies to the grievance officer I think to the grievance officer sorry yes he didn't say that did he. That he is doing this because the Xerox you know he did not. And in fact what was explicitly the sequence here gets a little bit confusing and in part it's because of very detailed nature of this procedure in the various levels of it but he was provided with a notice was he not from the secretary's office have been made grievances and appeals that has form language relative to including all complete documents and telling me. We had 10 working days to provide such documents and then there's language at the bottom of that form of that photocapping services this is page 146 of 8146 and it indicates your appeal to facility manager signed and dated is what was not included. What if anything did he do after receiving this so we got our call it for. After receiving that form he went and within the 10 days allotted he provided his original his original handwritten copies to the grievance officer officer. And which you would have to agree were not what the policy requires. That is correct with the policy requires at the third level of review which maintains that he provided. So so this all this come this case all come down to he said they said is it all come down to my client claims that he attached these the prison system says he didn't. Because if that's the case every one of these cases eventually ends up in the US district court and maybe eventually the court because we're always going to have. Complainance claimants who say well I just know you're on our at the very last I touched it. I'm sorry
. At the very least it is he said she said as to whether Mr. Matt complied with the third level of review but more importantly even if did he tell them. Yes after receiving that notice that says your appeal to facility manager signed and dated is what was not included here and is required. Did he tell them I gave you this already. Yes he explained he says that he did tell them that anything and writing to that is there anything in writing to that effect that he told them I gave you this once already. Why are you asking. And where is that in the record. I don't believe there's anything in writing that in the record from him to the prison. So the prison system so the implication from that then is that the prison system had no opportunity to determine whether or not there was some administrative fallup whether in fact within their process within an office at the secretaries office of inmate grievances and appeals somebody lost. And otherwise attached set of documents. They weren't alerted to that. I respectfully disagree your honor I think that I'm asking. I'm asking as to whether when they were alerted I believe there is a note in the record I can find that for you for a bottle that he says he explained to them that he. That he provided the copies the original photo copies the first time around and so I can try and find the few but that would be helpful if there's some kind of affidavit or something that puts the prison system on notice that they better rebut that I believe so you're on. But even if that's not the case when he was then asked he was asked for additional copies of these documents and he went ahead and handed in his originals and. This quote is actually never held that someone who did so many efforts is Mr Mac here. What are those so many efforts according to the record by December there was a new photocopier obtained right and we're talking about activity here that took place in January and February the following year
. He must live. I don't think that the record is clear that there was a new photocopier there's a contention by the prison that there was a new photocopier but it's not clear and the district court never determined anything like that district court didn't determine that he could. Make a photocopy at that time or even that he hadn't originally sent in his photocopies at the third level over here district court just assume that but even if you look at the additional request from officer Watson and you think of that as part of the grievance procedure. His provision of originals was enough to substantially comply it doesn't have to be perfect it doesn't have to be exact. This way to the case. The substantial compliance does does that survive Woodford and Jones. Yes, Your Honor. How so. Who's the burden of proof on at the hearing before the district court who had the burden of proof of demonstrating substantial compliance. Your Honor, the prison has the burden of proof of demonstrating that Mr. Mac felt to exhaust and as a result the prison has the burden of proof. But it's enough to for the prison system merely to raise its policy at that stage isn't it? And the fact that what Mr. Mac did was not consistent with the policy isn't the burden of proof then on him to come back to the prison. So the substantial compliance assuming that substantial compliance is even the jurisprudence of this court which I'm not prepared to accept even prior to. There's certainly language in in Judge Becker's opinion relative to substantial compliance but I believe open whether it's part of the Holy. Well, Your Honor, I believe your earlier question was whether it survives Woodford and Woodford only requires that deadlines and other critical procedure rules be complied with. And here we submit that this was not there were no deadlines or critical procedure rules that Mr
. Mac felt to comply with. Well, I think it would be one thing if the appeal or his case was dismissed because he didn't supply it but once they have sent him an action required form that says what he has to do within 10 days in italics and will result in immediate dismissal of your appeal. So you think is being put on notice via this document makes it something that they really care about a critical rule if you will. Your Honor, I see my time is up and we'll put another two minutes on please. And we do appreciate counsel. We know you are a proponent. We appreciate your efforts and we want you to have the opportunity to figure out all your arguments out. So, but anyway, don't you think having been served with this giving him 10 days that that kind of puts up a red flag that if we're talking about, you know, what needs to be complied with that this would be a critical rule. Your Honor, I think that I don't think that it would make it a critical rule. It is outside of the written policies as specified in DC and made a four. But even if it is a critical rule, he did substantially comply with that. Woodford V. N. G. O. doesn't say that perfect compliance is necessary for all deadlines for critical procedure rules. It's proper
. It's a proper exhaustion. It says proper exhaustion. Yes. And what is proper exhaustion? Proper exhaustion is that it's the notion that the prisoner cannot claim he has exhausted all those remedies. If there is just no more process that is open to him, that he does have to comply with the deadlines and the avenues available each term. I think the quote Woodford states proper exhaustion requires quote using all steps that the agency holds out and doing so properly. And quotes correct, Your Honor, but proper does not mean perfect. And here he did supply original papers which raised the exact same original. I don't think I saw original brief. I saw hand. I understood the brief as that he had copied out his original and said them a copy of that. Your Honor, if that is the case, that is that is our misstep. What is what is that he literally copied out by hand after the fact or whether they are original handwritten copies, which is the term that he uses in his papers. Regardless, we're talking about two documents that literally just say I would like to appeal, prevent such and such. We're not talking about a description of the events. These are fairly insignificant documents. And if the prison had any question, they already had a copy that was that was
. Is it insignificant for the prison to want to know exactly what it was that was filed earlier upstream in the process and was providing notice to prison disciplinary officials at that stage. Your Honor, that's completely insignificant. No, that it's not insignificant, but the prison already had the original appeal to the facility manager. No one is suggesting that at this second level of review, Mr. Mac did not file these two papers saying I would like to appeal the screen. And in fact, the prison responded. So we know they were aware. The only documents we're talking about are things that say I would like to appeal the screen. But we don't know, a friend said you just said they have these things, but we don't know whether this system is just a tracking system or whether files are maintained. And here again, we're left to. You'd like to place a question mark and say, oh, well, they have them. But we don't have proof that they actually had this so that it could be kind of a no harm, no foul kind of rule. Do you have any proof that this that they have a database that contains this so they really didn't need it anyway? We don't have proof that the automated system contains actual copies of this. What we do have is that he originally submitted the appeals to the facility manager and that that goes into the grievance file. It may not be where the final appeal is being considered. And that is what the prison contains. But remember, we had no discovery despite repeated requests for discovery
. We had no counsel. We had, we say repeated requests for discovery. He found a motion for discovery that was declared moot because he didn't have to move. He just had to serve a request. Did he ever serve a request? You're on our he says the fact that the things he put in his motion. We're not have ferret it out this information in any of that. But did he serve you a request for discovery? He the record does not reflect any requests for discovery that he actually served. There are no copies of that. However, in his very response, the district court, he references that defendants have failed refused. I'm sorry to provide him with discovery. And that came after that motion for discovery was denied. So a fair reading of the record shows that he found a motion for discovery set forth some things that he wanted not realizing that he didn't have to file the district court. The district court denied that and said you only have to serve on the defendants. And thereafter, he raised it to the death's record long afterwards that he never received any discovery materials. And in one of those filings, he labeled it as discovery. So he fairly alerted the court that he'd been asking for these things. And although the particular things that he noted did not go to exhaustion, I think that construing all pro-side filings in his favor, all influences in his favor, it's fair to think that he was not provided with any discovery
. And he says, defendants have refused discovery, which may include exhaustion discovery. We don't know. All right. Thank you. We'll hear from you again on rebuttal. May I please the court? My name is Howard Hopkins and I'm with the Pennsylvania Office of Attorney General and I represent the appellees, all of whom were employed by the Pennsylvania Department of Corrections at SCI Dallas. I'd like to I feel the court does understand my basic arguments. So first I wanted to try to clarify some of these factual questions. And then Judge Smith seems to like to have a test. And I think maybe I can provide him with something like that for the substantial compliance. I'm every now and then I like rules sometimes. Follow me. On 288A of the appendix, there is a cover letter. I'm sorry, what they? 288A of the appendix. There is a cover letter from Mr. Mack in which he was providing the handwritten copies. And I'm not sure if I can provide him with the names of his miss of the native February 19, 2008
. Yes. And that is the only communication regarding providing these handwritten copies. And speculously absent from this is any suggestion that you lost my earlier submitted copies. That's correct. And our position is to even get to the unarguable substantial compliance issue. He would have had to give him some reason why he was only providing handwritten copies. Mr. Hopkins, the inmate request to staff member, these so-called handwritten copies or whatever in fact they were. And I agree with as Roth it's kind of unclear in the briefing what was meant by this. But what one one is dated December 20, 2007 the other is dated December 22, 2007. Now it we checked and interestingly this these dates are prior to the January 3rd, 2008. So these couldn't have even been in existence as original sort of they had been originally. Because they necessarily would have been prepared after the IRR decision. Am I right? Or when he was making the handwritten copies he was mistaken about about the date. Okay. I mean I think that's probably the situation. And just for reference the inmate request form what I believe is those were forms that were readily available to him to have paper to make these handwritten copies to try to provide sustenatively what was in his original appeal. But it's missing the the signed you know signed notations and the actual date. And as I suggested to the court in my brief this court requires lit against to include copies of of things of lower court decisions. Even though you could have your law clerks get on Pacer and find the decisions what's such for the ghost is sauce for the gander. And my only point is there is a rational basis for this type of rule and to also clarify the third step of the final review is in Camp Hill Pennsylvania where the secretary of the entire Department of Corrections is located. And so this is a centralized final review process. It's away from the institution itself. The people involved in those decisions are different from the people who are defendants in this case and anyone at SCI Dallas. And so while copies might be in existence at SCI Dallas that doesn't mean that they're put on a database and are easily accessible. Are you telling they're not put on a database and are not easily accessible. It's not it's not it's not it should be able to figure that fact out. It's not in the record record. But I am telling you I will make that representation. What makes this the supply of this appeal to the facility manager. What makes it critical that it be something other than a handwritten replication that contains all the same information. But it's just not it's not a photo copy. What makes that so critical. Well, I think it's a matter of sort of the best evidence and and instead of requiring
. But it's missing the the signed you know signed notations and the actual date. And as I suggested to the court in my brief this court requires lit against to include copies of of things of lower court decisions. Even though you could have your law clerks get on Pacer and find the decisions what's such for the ghost is sauce for the gander. And my only point is there is a rational basis for this type of rule and to also clarify the third step of the final review is in Camp Hill Pennsylvania where the secretary of the entire Department of Corrections is located. And so this is a centralized final review process. It's away from the institution itself. The people involved in those decisions are different from the people who are defendants in this case and anyone at SCI Dallas. And so while copies might be in existence at SCI Dallas that doesn't mean that they're put on a database and are easily accessible. Are you telling they're not put on a database and are not easily accessible. It's not it's not it's not it should be able to figure that fact out. It's not in the record record. But I am telling you I will make that representation. What makes this the supply of this appeal to the facility manager. What makes it critical that it be something other than a handwritten replication that contains all the same information. But it's just not it's not a photo copy. What makes that so critical. Well, I think it's a matter of sort of the best evidence and and instead of requiring. Well, wait a minute, Mr. Hoppe. What did the Commonwealth need to know that they did not know from what they received. But additional did they need to have learned from this copy that was provided on February the 19th. Well, I think as a system type thing, I can't speak to this case and they never reach the merits because of the procedural default. But things like whether it was timely, whether it was what the reasons were given for the appeal and for the for the denial of the appeal and things like that. But the appeal was the intermediate appeal was decided on the merits. So wasn't wasn't if it wasn't timely, hadn't that been waived. I mean, there really is no issue that the intermediate appeals timely because it was reviewed. And it was decided on the merits, correct? It was decided on the merits, but I think all the documents that are required together provide or something that can be used by the final reviewers. And I would also say I don't think we're here. My concern is the document that was sent on February the 19th. That was a hand copied and in reply to the request for the copy and a hand written copy was sent on February the 19th. I gather it was accurate. Is there any contention? It wasn't accurate. Is there any information that absolutely the final appeal board had to have in order to determine the appeal on the merits? In this case, probably, probably not, but as a. Isn't that substantial compliance? No, Your Honor, substantial compliance is following the requirements under DOC 804
. Well, wait a minute, Mr. Hoppe. What did the Commonwealth need to know that they did not know from what they received. But additional did they need to have learned from this copy that was provided on February the 19th. Well, I think as a system type thing, I can't speak to this case and they never reach the merits because of the procedural default. But things like whether it was timely, whether it was what the reasons were given for the appeal and for the for the denial of the appeal and things like that. But the appeal was the intermediate appeal was decided on the merits. So wasn't wasn't if it wasn't timely, hadn't that been waived. I mean, there really is no issue that the intermediate appeals timely because it was reviewed. And it was decided on the merits, correct? It was decided on the merits, but I think all the documents that are required together provide or something that can be used by the final reviewers. And I would also say I don't think we're here. My concern is the document that was sent on February the 19th. That was a hand copied and in reply to the request for the copy and a hand written copy was sent on February the 19th. I gather it was accurate. Is there any contention? It wasn't accurate. Is there any information that absolutely the final appeal board had to have in order to determine the appeal on the merits? In this case, probably, probably not, but as a. Isn't that substantial compliance? No, Your Honor, substantial compliance is following the requirements under DOC 804. And that required providing photocopies. And well, in particular cases, it may turn out that it's not important as a systemwide thing to have a unified review system. There is an importance to requiring these documents. Mr. Hopkins, is that importance that the system has decided they want all of the relevant documents associated with the appeal process appended in one place for the reviewer at Camp Hill? I mean, is that essentially that's essentially it? Yes, and I would say that Congress in enacting the PLRA said that these types of determinations as later appell and interpreted by the Supreme Court. These types of policies are not things to be second guess by the court. In fact, in Jones versus Beck, what the Supreme Court said was the level of detail necessary in agreements to comply with agreements procedures will vary from system to system and claim to claim, but is that the prisons requirements and not the PLRA that define the boundaries of proper exhaustion. What does that tell us about whether or not what we had here was proper exhaustion? Well, I think it's the prisons requirements and not the PLRA. I mean, on its face, he did not properly exhaust. He had a claim that he actually included those photocopies in the original complaint. At that point, if the prison had done nothing and had just dismissed his complaint without giving him an opportunity to cure, then I think you very well might have a substantial compliance with the requirements. But in this case, the prison actually bent over backwards to try to allow him to complete. He provided the information that was requested, but it was in hand written rather than photocopy form. And it's our position that that is inadequate, especially if he had given a reason, if he had said I'm providing these because the photocopier is broken and there's no way I asked to get photocopies made and they say there's no way to make them. Then again, I think you might have substantial compliance. But one, I would say, as Judge Smith pointed out, the copier appears to have been fixed in December in response either to his complaints or other people's complaints, which was well before this. And second, the policy itself, as far as grievances goes, has a whole separate instructions about allowing inmates to approach their unit manager and other procedures to obtain photocopies
. And that required providing photocopies. And well, in particular cases, it may turn out that it's not important as a systemwide thing to have a unified review system. There is an importance to requiring these documents. Mr. Hopkins, is that importance that the system has decided they want all of the relevant documents associated with the appeal process appended in one place for the reviewer at Camp Hill? I mean, is that essentially that's essentially it? Yes, and I would say that Congress in enacting the PLRA said that these types of determinations as later appell and interpreted by the Supreme Court. These types of policies are not things to be second guess by the court. In fact, in Jones versus Beck, what the Supreme Court said was the level of detail necessary in agreements to comply with agreements procedures will vary from system to system and claim to claim, but is that the prisons requirements and not the PLRA that define the boundaries of proper exhaustion. What does that tell us about whether or not what we had here was proper exhaustion? Well, I think it's the prisons requirements and not the PLRA. I mean, on its face, he did not properly exhaust. He had a claim that he actually included those photocopies in the original complaint. At that point, if the prison had done nothing and had just dismissed his complaint without giving him an opportunity to cure, then I think you very well might have a substantial compliance with the requirements. But in this case, the prison actually bent over backwards to try to allow him to complete. He provided the information that was requested, but it was in hand written rather than photocopy form. And it's our position that that is inadequate, especially if he had given a reason, if he had said I'm providing these because the photocopier is broken and there's no way I asked to get photocopies made and they say there's no way to make them. Then again, I think you might have substantial compliance. But one, I would say, as Judge Smith pointed out, the copier appears to have been fixed in December in response either to his complaints or other people's complaints, which was well before this. And second, the policy itself, as far as grievances goes, has a whole separate instructions about allowing inmates to approach their unit manager and other procedures to obtain photocopies. The idea that SCI Dallas that has 1500 prisoners and I don't know how many staff only had one copier in the library and that was the only way to make copies for grievances just doesn't seem credible. Mr. Hopkins, was substantial compliance the rule of this circuit even prior to Woodford? Are you arguing with the assumption that substantial compliance was our rule? I'm not arguing that substantial compliance can exist. As I see and read Nyhoos, Judge Becker's opinion, the holding is we hold that the PLR amended 1997 BA in such a way as to make exhaustion of all administrative remedies mandatory. And of course, this case was a futility exception case, but it's later in the opinion that the language emerges and it is just we know our understanding that compliance with the administrative remedy scheme will be satisfactory if it is substantial. But the whole sentence begins without embellishing for the case law in the area will have to develop. We know that I understand. Is that part of the holding? And therefore is it the rule? And if it was the rule as I think Judge Mendel asked earlier about Woodford, what stands in the way it would? I think this panel can largely say what the rule for substantial compliance is. And I would say that apart from this case, what did you just say? That this is our job? Yes. I think we know that, but you're here. We'd like to hear what you have. And I want to give you the test I was promising you. I think a prisoner may properly argue substantial compliance where one, it's impossible to comply with the requirements. You know, I don't know. And these are going to be narrow exceptions, but you know, the prisoner was in a coma or incapacitated. So he couldn't meet the deadlines that that was just impossible. Second, corrections officials have actively prevented compliance, which is quite different from this case where they tried to facilitate compliance
. The idea that SCI Dallas that has 1500 prisoners and I don't know how many staff only had one copier in the library and that was the only way to make copies for grievances just doesn't seem credible. Mr. Hopkins, was substantial compliance the rule of this circuit even prior to Woodford? Are you arguing with the assumption that substantial compliance was our rule? I'm not arguing that substantial compliance can exist. As I see and read Nyhoos, Judge Becker's opinion, the holding is we hold that the PLR amended 1997 BA in such a way as to make exhaustion of all administrative remedies mandatory. And of course, this case was a futility exception case, but it's later in the opinion that the language emerges and it is just we know our understanding that compliance with the administrative remedy scheme will be satisfactory if it is substantial. But the whole sentence begins without embellishing for the case law in the area will have to develop. We know that I understand. Is that part of the holding? And therefore is it the rule? And if it was the rule as I think Judge Mendel asked earlier about Woodford, what stands in the way it would? I think this panel can largely say what the rule for substantial compliance is. And I would say that apart from this case, what did you just say? That this is our job? Yes. I think we know that, but you're here. We'd like to hear what you have. And I want to give you the test I was promising you. I think a prisoner may properly argue substantial compliance where one, it's impossible to comply with the requirements. You know, I don't know. And these are going to be narrow exceptions, but you know, the prisoner was in a coma or incapacitated. So he couldn't meet the deadlines that that was just impossible. Second, corrections officials have actively prevented compliance, which is quite different from this case where they tried to facilitate compliance. And there are numerous cases from other circuits dealing with the intervention of prison officials and they're making it impossible or impractable for a prisoner to utilize the briefness. And then the third would be the prisoner has decaramentally relied upon the actions or statements of officials. So he reasonably believes he is in compliance or compliance is not necessary. But none of those three address the qualitative measure of substantial that defines compliance. You're talking about three circumstances that would excuse total compliance, but you haven't told us how you measure from a qualitative standpoint. The compliance that he has done as compared to the compliance that might technically be required by the rules. So aren't you leaving something out? I mean, what you've told us, okay, if we get that case, then we won't slap the prisoner on the wrist. We'll say, you know, you can proceed, but it's not really substantial compliance. It's that compliance was excused because it was impossible or he's prevented or he detrimentally relied. So what's the qualitative measure of the kind of critical rules, if you will, under the case law that would be substantial. Do you have an answer to that or a rule? I'm not sure what you mean by qualitative. What does substantial mean? Substantial is a term that defines the, you know, a quantity, a type, a quality, and a compliance. I think that there may be a minimal. It's not perfect. There's a mistake in using the word substantial in its normal sense because I think a opposing counsel wants to make it sound like, well, he had to do 15 things and he did 14 of them perfectly. It's just kind of good, good enough plus, maybe. Good enough for government work
. And there are numerous cases from other circuits dealing with the intervention of prison officials and they're making it impossible or impractable for a prisoner to utilize the briefness. And then the third would be the prisoner has decaramentally relied upon the actions or statements of officials. So he reasonably believes he is in compliance or compliance is not necessary. But none of those three address the qualitative measure of substantial that defines compliance. You're talking about three circumstances that would excuse total compliance, but you haven't told us how you measure from a qualitative standpoint. The compliance that he has done as compared to the compliance that might technically be required by the rules. So aren't you leaving something out? I mean, what you've told us, okay, if we get that case, then we won't slap the prisoner on the wrist. We'll say, you know, you can proceed, but it's not really substantial compliance. It's that compliance was excused because it was impossible or he's prevented or he detrimentally relied. So what's the qualitative measure of the kind of critical rules, if you will, under the case law that would be substantial. Do you have an answer to that or a rule? I'm not sure what you mean by qualitative. What does substantial mean? Substantial is a term that defines the, you know, a quantity, a type, a quality, and a compliance. I think that there may be a minimal. It's not perfect. There's a mistake in using the word substantial in its normal sense because I think a opposing counsel wants to make it sound like, well, he had to do 15 things and he did 14 of them perfectly. It's just kind of good, good enough plus, maybe. Good enough for government work. Yeah, there you go. Good enough for government work. But good enough plus, good enough times, too. And that's what they're arguing. It was good enough. And we don't think that that makes the test that it if the department has its guidelines that you know, you can't come in and argue, well, I don't think number 15's really that important. And something like that, you have to say they told me that it was okay for me to submit the handwritten. I mean, isn't the answer really that after Jones and Woodford, there probably isn't a substantial compliance or if there is, it's the prisoners, it's the prisons definition. And not for judges, if you will. I'm surprised. I'm surprised that Judge Randell is making the argument. I expected the hear from you all morning that we showed deference to prisons. Isn't that what Woodford and some of the other kids read the language? Well, I think my test does show deference to prisons. I think if you want to adopt Judge Randell's test, then we're certainly not going to judge. No, I'm not a doctor. I'm just saying what Jones says. Okay, I see I'm out of time and I would ask that the court, the court affirmed
. Yeah, there you go. Good enough for government work. But good enough plus, good enough times, too. And that's what they're arguing. It was good enough. And we don't think that that makes the test that it if the department has its guidelines that you know, you can't come in and argue, well, I don't think number 15's really that important. And something like that, you have to say they told me that it was okay for me to submit the handwritten. I mean, isn't the answer really that after Jones and Woodford, there probably isn't a substantial compliance or if there is, it's the prisoners, it's the prisons definition. And not for judges, if you will. I'm surprised. I'm surprised that Judge Randell is making the argument. I expected the hear from you all morning that we showed deference to prisons. Isn't that what Woodford and some of the other kids read the language? Well, I think my test does show deference to prisons. I think if you want to adopt Judge Randell's test, then we're certainly not going to judge. No, I'm not a doctor. I'm just saying what Jones says. Okay, I see I'm out of time and I would ask that the court, the court affirmed. Thank you. Thank you, Green. Is Alia body? And I just have a few quick points. First I'd like to address my promise earlier to look up in the record, my recollection of when Mr. Mack had explained to officials that he previously provided copies. What I was thinking of was on his located on page 280 of the appendix and it's Mr. Mack's own comment that he had already explained that his copies were already sent, but to help clarify the matter, he sent his handwritten original copy that was on form DC-135A in May request staff. Okay, thank you. Where is this? It's 280 and the document starts on 266. Second, I'd like to address opposing counsel's suggestion that there was no evidence in the record that there were other copies around the prison system that could have been looked at copies of the appeal to the facility manager. Irrespective of the automated tracking system, if you look at the bottom of some of the prison documents to Mr. Mack, they themselves showed it were CC to multiple people in the prison prevent system. For instance, page 321, 190 to 91, 289 to 89. And what is this? What is this? What do Xerox copies prove? This just shows your honor that there are copies of prison documents relating to Mr. Mack's grievance in different places in the prison prevent system. So many CCs, somebody else, but they could delete. You don't hold on to everything you get
. Thank you. Thank you, Green. Is Alia body? And I just have a few quick points. First I'd like to address my promise earlier to look up in the record, my recollection of when Mr. Mack had explained to officials that he previously provided copies. What I was thinking of was on his located on page 280 of the appendix and it's Mr. Mack's own comment that he had already explained that his copies were already sent, but to help clarify the matter, he sent his handwritten original copy that was on form DC-135A in May request staff. Okay, thank you. Where is this? It's 280 and the document starts on 266. Second, I'd like to address opposing counsel's suggestion that there was no evidence in the record that there were other copies around the prison system that could have been looked at copies of the appeal to the facility manager. Irrespective of the automated tracking system, if you look at the bottom of some of the prison documents to Mr. Mack, they themselves showed it were CC to multiple people in the prison prevent system. For instance, page 321, 190 to 91, 289 to 89. And what is this? What is this? What do Xerox copies prove? This just shows your honor that there are copies of prison documents relating to Mr. Mack's grievance in different places in the prison prevent system. So many CCs, somebody else, but they could delete. You don't hold on to everything you get. Correct, correct. And one of these CCs is to grievance file. And so I just wanted to point out that there is some suggestion that there are other copies of the appeal to the facility manager, else when this is something that could have been consulted. Third, your honor. Opposing counsel's suggestion that the prison vent over backwards in sending Mr. Mack this request from officer Watson for additional copies. They asked for copies, not photocopies, and he provided copies. They actually could have done more. They could have asked specifically for photocopies before actually denying his appeal at the final stage. So there were more things that the prison could have done. At the end of the day, your honor, the prison could always come up with extra requests for additional copies of documents saying they were missing. Things that might confuse the prisoner. At the end of the day, his interpretation of that request and his provision of originals or original handwritten documents, whatever it was, was enough for substantial compliance. Looking at the exhaustion case law in all the different circuits and in the different courts within the circuit. But the one thing that is that's common to everything is a focus on context and circumstance, whether it's an unavailability framework, whether it's a justification or excuse framework, or substantial compliance framework. Miss Alimba, if I could take you back to the first point you made, which was to draw our attention to the document of the person of which is at A to A. Correct
. Correct, correct. And one of these CCs is to grievance file. And so I just wanted to point out that there is some suggestion that there are other copies of the appeal to the facility manager, else when this is something that could have been consulted. Third, your honor. Opposing counsel's suggestion that the prison vent over backwards in sending Mr. Mack this request from officer Watson for additional copies. They asked for copies, not photocopies, and he provided copies. They actually could have done more. They could have asked specifically for photocopies before actually denying his appeal at the final stage. So there were more things that the prison could have done. At the end of the day, your honor, the prison could always come up with extra requests for additional copies of documents saying they were missing. Things that might confuse the prisoner. At the end of the day, his interpretation of that request and his provision of originals or original handwritten documents, whatever it was, was enough for substantial compliance. Looking at the exhaustion case law in all the different circuits and in the different courts within the circuit. But the one thing that is that's common to everything is a focus on context and circumstance, whether it's an unavailability framework, whether it's a justification or excuse framework, or substantial compliance framework. Miss Alimba, if I could take you back to the first point you made, which was to draw our attention to the document of the person of which is at A to A. Correct. The plaintiff Mack had already explained. This is a document filed with the district court, right? Yes. Is there anything in the record that has been identified that shows that in writing, Mr. Mack, notified the prisons during that process that they had lost documents? No, your honor. Thank you very much. Thank you. And we thank Schneider, the Schneider firm, for undertaking this. Thank you very much. Excellent. That's the product and we appreciate it. Case as well, our gate will take an under advisement.
I'm doing pretty well. Thank you. Good. All right. We'll start our arguments for the day with the case of the United States. No, let's see. Mac versus Pope Potosky. May please the court. Sarah Aliabadi for plaintiff Pellant Derrachback and I'd like to reserve two minutes for a bottle please. It's granted. This court should reverse because Mr. Mac perfectly and strictly complied with the Greenness procedures as written. Miss Miss Aliabadi, what did DC ADM 804 specifically require here and what did your client do that he considers to be substantial compliance? Your Honor, DC ADM 804 required Mr. Mac to provide photo copies at the third final stage of review. Mr. Mac contends that that's exactly what he did when he submitted his documents to the first level of review. He submitted everything that was necessary the second level and the third level of review and in fact the district court assumed that Mr. Mac did supply the required photo copies when he first submitted his documentation at the third level. What Mr. Mac contends is that he strictly and perfectly complied with all of the procedures at the first stage. And our yes of substantial compliance you're arguing that he strictly and perfectly complied. Your Honor, we're arguing both we are arguing that he strictly and perfectly complied with the procedures as written and that is what the court should look at. But even if the court looks at the additional request by officer Watson for more copies of the appeal to the facility manager which came after the three levels of review, even if the court looks at that he still substantially complied with that request by providing his own originals or he got a notice that he had to supply copies or his appeal would be dismissed. Now he had supplied copies of other documents I mean actual photo copies but he failed to supply the appeal to the facility manager signed and dated correct. That is what the prison contends your Honor but actually the district court assumed that Mr. Mac provided the required documentation at all three stages of review on page 20 of its opinion which is at appendix page 48 to 49. The district court says even if Mac included the photo copies of his appeal the fact is that he was informed they were missing and in fact the prison concedes that it can't prove Mac didn't attach the required documents including the photo copies to his appeal for final review. So you're arguing burden here you're arguing they had that burden and they didn't prove it based. That's true they had that burden and they didn't prove it it's their burden to prove that he failed to exhaust but even if we look at their later request for additional copies let's say they lost the copies that were provided and they asked Mr. Mac also substantially complied with that under this court's jurisprudence. Mr. Mac provided his originals originals are better than photo copies your Honor he was asked for copies from officer Watson and he provided his originals after. I thought he had copied the particular form it was requested. Your Honor the record refers to it as handwritten original copies I think the most reasonable reading of the record is he didn't have any more photo copies after the whole process was done so when officer Watson asked him for his photo copies saying that they were missing he just gave in his originals. But you can't say it was an original he copied it at that point in time did he not where they signed and dated from the original time frame your Honor I believe they were and honestly the record is unclear but he says he provided his handwritten originals and whether he recopied it out or more reasonably whether he just kept his original my assumption here. But you're the moving party don't you think you have some obligation to tell us who's on first and tell us exactly what did happen here yes your Honor and I mean if you want to prevent a dismissal you have to say you know this is what I did it was my original I did supply and they must have lost it and they prevented me because the photo copy was broken I mean this is this is like a guessing game we're supposed to make a district was making assumptions. And you're saying the defendant has to fair it out what happened here seemed to me if he wants to pursue his case he's got obligations and in response to a notice the talks about photo copy he either has to provide that photo copy for at least alert the district court that the copy was broken he didn't do that did he. Well you're on our first of all the request that he received did he do that did he let the district court know the argument that is currently being made that the photo copy was broken did he say that he said that he provided his original copies and then later when it was claimed to be missing he provided his quote original handwritten copies that's on appendix page 260 that was in front of the court my question to you did he say to the district court I'm. Giving you my original handwritten because the copier was broken I complained about it but the prison did nothing about it did he say that to the district court he did not link it up he provided information that the copy was broken and he also did when did he say the copy was broken it is at appendix page 253 and that was before the district court yes after after the ruling. At what what stage he didn't say that when he supplied the handwritten copies did he. When he supplied the handwritten copies to the grievance officer I think to the grievance officer sorry yes he didn't say that did he. That he is doing this because the Xerox you know he did not. And in fact what was explicitly the sequence here gets a little bit confusing and in part it's because of very detailed nature of this procedure in the various levels of it but he was provided with a notice was he not from the secretary's office have been made grievances and appeals that has form language relative to including all complete documents and telling me. We had 10 working days to provide such documents and then there's language at the bottom of that form of that photocapping services this is page 146 of 8146 and it indicates your appeal to facility manager signed and dated is what was not included. What if anything did he do after receiving this so we got our call it for. After receiving that form he went and within the 10 days allotted he provided his original his original handwritten copies to the grievance officer officer. And which you would have to agree were not what the policy requires. That is correct with the policy requires at the third level of review which maintains that he provided. So so this all this come this case all come down to he said they said is it all come down to my client claims that he attached these the prison system says he didn't. Because if that's the case every one of these cases eventually ends up in the US district court and maybe eventually the court because we're always going to have. Complainance claimants who say well I just know you're on our at the very last I touched it. I'm sorry. At the very least it is he said she said as to whether Mr. Matt complied with the third level of review but more importantly even if did he tell them. Yes after receiving that notice that says your appeal to facility manager signed and dated is what was not included here and is required. Did he tell them I gave you this already. Yes he explained he says that he did tell them that anything and writing to that is there anything in writing to that effect that he told them I gave you this once already. Why are you asking. And where is that in the record. I don't believe there's anything in writing that in the record from him to the prison. So the prison system so the implication from that then is that the prison system had no opportunity to determine whether or not there was some administrative fallup whether in fact within their process within an office at the secretaries office of inmate grievances and appeals somebody lost. And otherwise attached set of documents. They weren't alerted to that. I respectfully disagree your honor I think that I'm asking. I'm asking as to whether when they were alerted I believe there is a note in the record I can find that for you for a bottle that he says he explained to them that he. That he provided the copies the original photo copies the first time around and so I can try and find the few but that would be helpful if there's some kind of affidavit or something that puts the prison system on notice that they better rebut that I believe so you're on. But even if that's not the case when he was then asked he was asked for additional copies of these documents and he went ahead and handed in his originals and. This quote is actually never held that someone who did so many efforts is Mr Mac here. What are those so many efforts according to the record by December there was a new photocopier obtained right and we're talking about activity here that took place in January and February the following year. He must live. I don't think that the record is clear that there was a new photocopier there's a contention by the prison that there was a new photocopier but it's not clear and the district court never determined anything like that district court didn't determine that he could. Make a photocopy at that time or even that he hadn't originally sent in his photocopies at the third level over here district court just assume that but even if you look at the additional request from officer Watson and you think of that as part of the grievance procedure. His provision of originals was enough to substantially comply it doesn't have to be perfect it doesn't have to be exact. This way to the case. The substantial compliance does does that survive Woodford and Jones. Yes, Your Honor. How so. Who's the burden of proof on at the hearing before the district court who had the burden of proof of demonstrating substantial compliance. Your Honor, the prison has the burden of proof of demonstrating that Mr. Mac felt to exhaust and as a result the prison has the burden of proof. But it's enough to for the prison system merely to raise its policy at that stage isn't it? And the fact that what Mr. Mac did was not consistent with the policy isn't the burden of proof then on him to come back to the prison. So the substantial compliance assuming that substantial compliance is even the jurisprudence of this court which I'm not prepared to accept even prior to. There's certainly language in in Judge Becker's opinion relative to substantial compliance but I believe open whether it's part of the Holy. Well, Your Honor, I believe your earlier question was whether it survives Woodford and Woodford only requires that deadlines and other critical procedure rules be complied with. And here we submit that this was not there were no deadlines or critical procedure rules that Mr. Mac felt to comply with. Well, I think it would be one thing if the appeal or his case was dismissed because he didn't supply it but once they have sent him an action required form that says what he has to do within 10 days in italics and will result in immediate dismissal of your appeal. So you think is being put on notice via this document makes it something that they really care about a critical rule if you will. Your Honor, I see my time is up and we'll put another two minutes on please. And we do appreciate counsel. We know you are a proponent. We appreciate your efforts and we want you to have the opportunity to figure out all your arguments out. So, but anyway, don't you think having been served with this giving him 10 days that that kind of puts up a red flag that if we're talking about, you know, what needs to be complied with that this would be a critical rule. Your Honor, I think that I don't think that it would make it a critical rule. It is outside of the written policies as specified in DC and made a four. But even if it is a critical rule, he did substantially comply with that. Woodford V. N. G. O. doesn't say that perfect compliance is necessary for all deadlines for critical procedure rules. It's proper. It's a proper exhaustion. It says proper exhaustion. Yes. And what is proper exhaustion? Proper exhaustion is that it's the notion that the prisoner cannot claim he has exhausted all those remedies. If there is just no more process that is open to him, that he does have to comply with the deadlines and the avenues available each term. I think the quote Woodford states proper exhaustion requires quote using all steps that the agency holds out and doing so properly. And quotes correct, Your Honor, but proper does not mean perfect. And here he did supply original papers which raised the exact same original. I don't think I saw original brief. I saw hand. I understood the brief as that he had copied out his original and said them a copy of that. Your Honor, if that is the case, that is that is our misstep. What is what is that he literally copied out by hand after the fact or whether they are original handwritten copies, which is the term that he uses in his papers. Regardless, we're talking about two documents that literally just say I would like to appeal, prevent such and such. We're not talking about a description of the events. These are fairly insignificant documents. And if the prison had any question, they already had a copy that was that was. Is it insignificant for the prison to want to know exactly what it was that was filed earlier upstream in the process and was providing notice to prison disciplinary officials at that stage. Your Honor, that's completely insignificant. No, that it's not insignificant, but the prison already had the original appeal to the facility manager. No one is suggesting that at this second level of review, Mr. Mac did not file these two papers saying I would like to appeal the screen. And in fact, the prison responded. So we know they were aware. The only documents we're talking about are things that say I would like to appeal the screen. But we don't know, a friend said you just said they have these things, but we don't know whether this system is just a tracking system or whether files are maintained. And here again, we're left to. You'd like to place a question mark and say, oh, well, they have them. But we don't have proof that they actually had this so that it could be kind of a no harm, no foul kind of rule. Do you have any proof that this that they have a database that contains this so they really didn't need it anyway? We don't have proof that the automated system contains actual copies of this. What we do have is that he originally submitted the appeals to the facility manager and that that goes into the grievance file. It may not be where the final appeal is being considered. And that is what the prison contains. But remember, we had no discovery despite repeated requests for discovery. We had no counsel. We had, we say repeated requests for discovery. He found a motion for discovery that was declared moot because he didn't have to move. He just had to serve a request. Did he ever serve a request? You're on our he says the fact that the things he put in his motion. We're not have ferret it out this information in any of that. But did he serve you a request for discovery? He the record does not reflect any requests for discovery that he actually served. There are no copies of that. However, in his very response, the district court, he references that defendants have failed refused. I'm sorry to provide him with discovery. And that came after that motion for discovery was denied. So a fair reading of the record shows that he found a motion for discovery set forth some things that he wanted not realizing that he didn't have to file the district court. The district court denied that and said you only have to serve on the defendants. And thereafter, he raised it to the death's record long afterwards that he never received any discovery materials. And in one of those filings, he labeled it as discovery. So he fairly alerted the court that he'd been asking for these things. And although the particular things that he noted did not go to exhaustion, I think that construing all pro-side filings in his favor, all influences in his favor, it's fair to think that he was not provided with any discovery. And he says, defendants have refused discovery, which may include exhaustion discovery. We don't know. All right. Thank you. We'll hear from you again on rebuttal. May I please the court? My name is Howard Hopkins and I'm with the Pennsylvania Office of Attorney General and I represent the appellees, all of whom were employed by the Pennsylvania Department of Corrections at SCI Dallas. I'd like to I feel the court does understand my basic arguments. So first I wanted to try to clarify some of these factual questions. And then Judge Smith seems to like to have a test. And I think maybe I can provide him with something like that for the substantial compliance. I'm every now and then I like rules sometimes. Follow me. On 288A of the appendix, there is a cover letter. I'm sorry, what they? 288A of the appendix. There is a cover letter from Mr. Mack in which he was providing the handwritten copies. And I'm not sure if I can provide him with the names of his miss of the native February 19, 2008. Yes. And that is the only communication regarding providing these handwritten copies. And speculously absent from this is any suggestion that you lost my earlier submitted copies. That's correct. And our position is to even get to the unarguable substantial compliance issue. He would have had to give him some reason why he was only providing handwritten copies. Mr. Hopkins, the inmate request to staff member, these so-called handwritten copies or whatever in fact they were. And I agree with as Roth it's kind of unclear in the briefing what was meant by this. But what one one is dated December 20, 2007 the other is dated December 22, 2007. Now it we checked and interestingly this these dates are prior to the January 3rd, 2008. So these couldn't have even been in existence as original sort of they had been originally. Because they necessarily would have been prepared after the IRR decision. Am I right? Or when he was making the handwritten copies he was mistaken about about the date. Okay. I mean I think that's probably the situation. And just for reference the inmate request form what I believe is those were forms that were readily available to him to have paper to make these handwritten copies to try to provide sustenatively what was in his original appeal. But it's missing the the signed you know signed notations and the actual date. And as I suggested to the court in my brief this court requires lit against to include copies of of things of lower court decisions. Even though you could have your law clerks get on Pacer and find the decisions what's such for the ghost is sauce for the gander. And my only point is there is a rational basis for this type of rule and to also clarify the third step of the final review is in Camp Hill Pennsylvania where the secretary of the entire Department of Corrections is located. And so this is a centralized final review process. It's away from the institution itself. The people involved in those decisions are different from the people who are defendants in this case and anyone at SCI Dallas. And so while copies might be in existence at SCI Dallas that doesn't mean that they're put on a database and are easily accessible. Are you telling they're not put on a database and are not easily accessible. It's not it's not it's not it should be able to figure that fact out. It's not in the record record. But I am telling you I will make that representation. What makes this the supply of this appeal to the facility manager. What makes it critical that it be something other than a handwritten replication that contains all the same information. But it's just not it's not a photo copy. What makes that so critical. Well, I think it's a matter of sort of the best evidence and and instead of requiring. Well, wait a minute, Mr. Hoppe. What did the Commonwealth need to know that they did not know from what they received. But additional did they need to have learned from this copy that was provided on February the 19th. Well, I think as a system type thing, I can't speak to this case and they never reach the merits because of the procedural default. But things like whether it was timely, whether it was what the reasons were given for the appeal and for the for the denial of the appeal and things like that. But the appeal was the intermediate appeal was decided on the merits. So wasn't wasn't if it wasn't timely, hadn't that been waived. I mean, there really is no issue that the intermediate appeals timely because it was reviewed. And it was decided on the merits, correct? It was decided on the merits, but I think all the documents that are required together provide or something that can be used by the final reviewers. And I would also say I don't think we're here. My concern is the document that was sent on February the 19th. That was a hand copied and in reply to the request for the copy and a hand written copy was sent on February the 19th. I gather it was accurate. Is there any contention? It wasn't accurate. Is there any information that absolutely the final appeal board had to have in order to determine the appeal on the merits? In this case, probably, probably not, but as a. Isn't that substantial compliance? No, Your Honor, substantial compliance is following the requirements under DOC 804. And that required providing photocopies. And well, in particular cases, it may turn out that it's not important as a systemwide thing to have a unified review system. There is an importance to requiring these documents. Mr. Hopkins, is that importance that the system has decided they want all of the relevant documents associated with the appeal process appended in one place for the reviewer at Camp Hill? I mean, is that essentially that's essentially it? Yes, and I would say that Congress in enacting the PLRA said that these types of determinations as later appell and interpreted by the Supreme Court. These types of policies are not things to be second guess by the court. In fact, in Jones versus Beck, what the Supreme Court said was the level of detail necessary in agreements to comply with agreements procedures will vary from system to system and claim to claim, but is that the prisons requirements and not the PLRA that define the boundaries of proper exhaustion. What does that tell us about whether or not what we had here was proper exhaustion? Well, I think it's the prisons requirements and not the PLRA. I mean, on its face, he did not properly exhaust. He had a claim that he actually included those photocopies in the original complaint. At that point, if the prison had done nothing and had just dismissed his complaint without giving him an opportunity to cure, then I think you very well might have a substantial compliance with the requirements. But in this case, the prison actually bent over backwards to try to allow him to complete. He provided the information that was requested, but it was in hand written rather than photocopy form. And it's our position that that is inadequate, especially if he had given a reason, if he had said I'm providing these because the photocopier is broken and there's no way I asked to get photocopies made and they say there's no way to make them. Then again, I think you might have substantial compliance. But one, I would say, as Judge Smith pointed out, the copier appears to have been fixed in December in response either to his complaints or other people's complaints, which was well before this. And second, the policy itself, as far as grievances goes, has a whole separate instructions about allowing inmates to approach their unit manager and other procedures to obtain photocopies. The idea that SCI Dallas that has 1500 prisoners and I don't know how many staff only had one copier in the library and that was the only way to make copies for grievances just doesn't seem credible. Mr. Hopkins, was substantial compliance the rule of this circuit even prior to Woodford? Are you arguing with the assumption that substantial compliance was our rule? I'm not arguing that substantial compliance can exist. As I see and read Nyhoos, Judge Becker's opinion, the holding is we hold that the PLR amended 1997 BA in such a way as to make exhaustion of all administrative remedies mandatory. And of course, this case was a futility exception case, but it's later in the opinion that the language emerges and it is just we know our understanding that compliance with the administrative remedy scheme will be satisfactory if it is substantial. But the whole sentence begins without embellishing for the case law in the area will have to develop. We know that I understand. Is that part of the holding? And therefore is it the rule? And if it was the rule as I think Judge Mendel asked earlier about Woodford, what stands in the way it would? I think this panel can largely say what the rule for substantial compliance is. And I would say that apart from this case, what did you just say? That this is our job? Yes. I think we know that, but you're here. We'd like to hear what you have. And I want to give you the test I was promising you. I think a prisoner may properly argue substantial compliance where one, it's impossible to comply with the requirements. You know, I don't know. And these are going to be narrow exceptions, but you know, the prisoner was in a coma or incapacitated. So he couldn't meet the deadlines that that was just impossible. Second, corrections officials have actively prevented compliance, which is quite different from this case where they tried to facilitate compliance. And there are numerous cases from other circuits dealing with the intervention of prison officials and they're making it impossible or impractable for a prisoner to utilize the briefness. And then the third would be the prisoner has decaramentally relied upon the actions or statements of officials. So he reasonably believes he is in compliance or compliance is not necessary. But none of those three address the qualitative measure of substantial that defines compliance. You're talking about three circumstances that would excuse total compliance, but you haven't told us how you measure from a qualitative standpoint. The compliance that he has done as compared to the compliance that might technically be required by the rules. So aren't you leaving something out? I mean, what you've told us, okay, if we get that case, then we won't slap the prisoner on the wrist. We'll say, you know, you can proceed, but it's not really substantial compliance. It's that compliance was excused because it was impossible or he's prevented or he detrimentally relied. So what's the qualitative measure of the kind of critical rules, if you will, under the case law that would be substantial. Do you have an answer to that or a rule? I'm not sure what you mean by qualitative. What does substantial mean? Substantial is a term that defines the, you know, a quantity, a type, a quality, and a compliance. I think that there may be a minimal. It's not perfect. There's a mistake in using the word substantial in its normal sense because I think a opposing counsel wants to make it sound like, well, he had to do 15 things and he did 14 of them perfectly. It's just kind of good, good enough plus, maybe. Good enough for government work. Yeah, there you go. Good enough for government work. But good enough plus, good enough times, too. And that's what they're arguing. It was good enough. And we don't think that that makes the test that it if the department has its guidelines that you know, you can't come in and argue, well, I don't think number 15's really that important. And something like that, you have to say they told me that it was okay for me to submit the handwritten. I mean, isn't the answer really that after Jones and Woodford, there probably isn't a substantial compliance or if there is, it's the prisoners, it's the prisons definition. And not for judges, if you will. I'm surprised. I'm surprised that Judge Randell is making the argument. I expected the hear from you all morning that we showed deference to prisons. Isn't that what Woodford and some of the other kids read the language? Well, I think my test does show deference to prisons. I think if you want to adopt Judge Randell's test, then we're certainly not going to judge. No, I'm not a doctor. I'm just saying what Jones says. Okay, I see I'm out of time and I would ask that the court, the court affirmed. Thank you. Thank you, Green. Is Alia body? And I just have a few quick points. First I'd like to address my promise earlier to look up in the record, my recollection of when Mr. Mack had explained to officials that he previously provided copies. What I was thinking of was on his located on page 280 of the appendix and it's Mr. Mack's own comment that he had already explained that his copies were already sent, but to help clarify the matter, he sent his handwritten original copy that was on form DC-135A in May request staff. Okay, thank you. Where is this? It's 280 and the document starts on 266. Second, I'd like to address opposing counsel's suggestion that there was no evidence in the record that there were other copies around the prison system that could have been looked at copies of the appeal to the facility manager. Irrespective of the automated tracking system, if you look at the bottom of some of the prison documents to Mr. Mack, they themselves showed it were CC to multiple people in the prison prevent system. For instance, page 321, 190 to 91, 289 to 89. And what is this? What is this? What do Xerox copies prove? This just shows your honor that there are copies of prison documents relating to Mr. Mack's grievance in different places in the prison prevent system. So many CCs, somebody else, but they could delete. You don't hold on to everything you get. Correct, correct. And one of these CCs is to grievance file. And so I just wanted to point out that there is some suggestion that there are other copies of the appeal to the facility manager, else when this is something that could have been consulted. Third, your honor. Opposing counsel's suggestion that the prison vent over backwards in sending Mr. Mack this request from officer Watson for additional copies. They asked for copies, not photocopies, and he provided copies. They actually could have done more. They could have asked specifically for photocopies before actually denying his appeal at the final stage. So there were more things that the prison could have done. At the end of the day, your honor, the prison could always come up with extra requests for additional copies of documents saying they were missing. Things that might confuse the prisoner. At the end of the day, his interpretation of that request and his provision of originals or original handwritten documents, whatever it was, was enough for substantial compliance. Looking at the exhaustion case law in all the different circuits and in the different courts within the circuit. But the one thing that is that's common to everything is a focus on context and circumstance, whether it's an unavailability framework, whether it's a justification or excuse framework, or substantial compliance framework. Miss Alimba, if I could take you back to the first point you made, which was to draw our attention to the document of the person of which is at A to A. Correct. The plaintiff Mack had already explained. This is a document filed with the district court, right? Yes. Is there anything in the record that has been identified that shows that in writing, Mr. Mack, notified the prisons during that process that they had lost documents? No, your honor. Thank you very much. Thank you. And we thank Schneider, the Schneider firm, for undertaking this. Thank you very much. Excellent. That's the product and we appreciate it. Case as well, our gate will take an under advisement