high school district cases zero four five six three four one zero four five six three six zero good morning before we start running the clock we'll do that the pm versus seattle schools first and you each side has ten minutes on that and then on the second case each side has fifteen minutes and that's it that seems a little odd because the issues are basically the same but sometimes in their the arbitrary system that we use to rate cases in terms of their rate sometimes that a little bit affected but i know that the arguments that you're that both sides are making are going to somewhat cross over but you have your you obviously have your own factual distinctions that i'm sure that you'll be talking about when you're handling your particular case  so we'll start with p n versus seattle school a free and appropriate public education in order to do this congress created a statute that empowers the parents of disabled children to advocate on behalf of their children ideas emphasis on  parental empowerment is so pronounced that this work can develop perfectly appropriate educational plan for a child and still violate the statute if they exclude the parent from the educational process i d i a also includes the shifting provisions because when it really comes down to it and you have tried everything else how can the parent of a disabled child effectively advocate for that child if he or she cannot afford to hire an attorney or another distinctive feature of ideally is its emphasis on speedy and amicable resolution of disputes well i think what you really have to focus on here are you've got to these cases obviously we've got we've got the i d f we've got settlements and so we've got to address the issues in terms of what you know how to apply buckhannon to the idea in terms of what how act most recently in karbala and the question is why would you depart from that line of precedent in an ideal a case and what i was getting at it at the beginning of my argument is that idea is exactly the type a free appropriate public well i agree with you in the sense that if peers you don't want your identified and you have the rights to certain you know you have the rights to certain things it seems to be a continuing to laminate these are costly and school districts whether they have a limited amount of money and it's not infrequent that we see the battles where the only way that the parents get perhaps what they're entitled to under the law is to bring a lawsuit but the question that i'm struggling with and and obviously the kids that don't have parents that are in a position to be able to do that or as as far as that goes and that's that obviously the law is what the law is and whether school districts want to provide things that are costly if they're required to purely private selman agreement it's more than a handshake there's been no assertion by the district that that this contract in this case didn't comply with state law governing you know valid contracts and did not order to change in the relationship between the parties they negotiated and came to a private settlement agreement and you're singing because that agreement could be enforced by the court if your party reaches that i think that's creation of the settlement agreement it's something that the later on if there's a breach but it's that would be there and to enforce the agreement the parties made the court would not be you know someone have you know they have to call the school on the carpet and say hey this is what this this child needs and then they settle and and it seems that that's a lot of what it takes and i don't i'm not portraying the school districts as as evil in the sense that there's a limited pot of money that has to go around and a lot of times what students are entitled to what you know after they're diagnosed an after it's determined what their particular plan requires and how to deal with their disability they're entitled to certain services so in both cases you know someone calls them on the carpet and they said ok yeah you're right and they get it and it cost them a lot of money to do it and and you have to you know you can you don't have to be a rocket scientist to say if they agreed to do it you know probably they came to the conclusion that they decided yes that's what that child needed and it's too bad someone have spent thirteen thousand dollars and i don't know eight or nine thousand dollars to do it well i would s of all that in the vast vast majority of cases it does not require the participation of attorneys for children to get the services they are entitled to under the idea and of course those cases that you folks are going to  will be those relatively small percentage of cases where attorneys do participate but seattle for example serves thousands of children in their special ed programs and very few of those cases ever even make it into due process much le to the ninth circuit court of appeals in those rare cases where that does occur i think under buchan and we do have a very clear and and definitive precedent that is binding on this court that under the cat theory which was rejected in fact in  private settlement agreement and that is a purely private settlement agreement that was voluntarily entered into by the parties does not give rise to prevailing party status and if you look at the cases bar years included in those that cite barrios post the post back in and you'll see that in every single one of those cases there is some degree of judicial imprimatur either in the agreement itself or in some  prejudgment order that was issued by those courts or if you agree that it doesn't have to be just a consent decree i mean that you know i mean if we if if we whole if we say that it does have to be judicial and promoter or the settlement agreement itself to have an eighty eight case where they settle their subsidy to planes in the agreement itself the parties agreed that the court would retain jurisdiction over the issue of who was the prevailing party and whether or not  in our case the only thing the settlement agreement says about fees is to preserve the issue neither party submitted to the jurisdiction of the court neither party admits that fees will be awarded either party  stipulated in the agreement that any body would have jurisdiction over the issue our agreement unlike the agreement in barrios has no legal access to if you will to judicial  pinion oversight or imprimatur with respect to the fee issue other types of oversight that have then that have been described in the post various cases include situations where the parties the district court that has instructions to the district court would have sufficient judicial imprimatur in fact it was a non issue so there are several options for what constitutes sufficient judicial and premature but i would submit idly for that not to occur if you look at the i d e s a few provisions they limit fees to prevailing parties so once a party prevails and it's your job to figure out what that means but once a party credit also under the i d e a there are express provisions that actually limit fees to that prevailing party to me this suggests that contrary to the arguments of the parents in this case the i primary purpose of the i a e a education is the statute over and over emphasizes settlement cooperation i also want to point out one thing post doc back and that is important for this court to consider bu stated that the statutory language is determinative of whether or not a party can obtain fees and refuse shifting statute they looked at the e a a they didn't see any language that supported the  catalyst theory answer rejected the countless theory we learned from back then and the statutory language is quite important since but going to and you have i believe it's four or five circuit cour of resources well i think you bring up a very good point which is that if this court adopts the rule that every other circuit has adopted in that wording you too i got we have a situation where fees are not awarded for private settlement agreement the parents attorneys fees because at that point in time the district has that exposure that's a risk that's where settling not because fees can be awarded at the settlement agreement that because fees could be awarded to the party who prevails at hearing so there still the opportunity for parents to get their fees in a compromised situation they're not prejudiced in any way nor does it deter from selling them special educators for this court to adopt the rule that's been adopted not seeking expensive services this is not a big there are important services but large monetary males are typically not at stake in either case so most parents are seeking something as simple as speech and language services from the school district or exclusion of a disabled child in a mainstream general and classroom and that is a very very important right for that child but it's not necessarily that expensive but the parent can obtain it in any other way and has a right to free an appropriate public education if the if the if the school district delays dealing with the issue which is what happened in this case we negotiated for seven months we went to four meetings we wrote multiple letters and  filed a lawsuit and you know two weeks before court were finally you know finally the school district approached us about selling the case if the school district delays dealing with the issue that offers the parent everything the parent wants which may not be a very expensive item for that the school district the parent has for the parent has had already had to spend a lot of money on their attorney getting for payer and they have no choice but to accept that settlement agreement so arguing about attorneys these would be and active again on the way and they know that these cases are out there and she did make a correct statement at a lot of their presume to know what's going on and if they had wanted to they could have sat private settlements if parents are entitled to you know two attorneys fees and they didn't they didn't but your honor the law but care and concern in private settlement agreements isn't a court cases are out there and i think that you know i think i think these areas are you know people are pretty engaged about them on both sides so i mean you know anything that's eighty anything this idea that you know all of those things you know they get a lot of expert testimony on these things about people that are concerned about what the problems are and what these services are that anybody that's the balance of your time so thank you thank you anything in your case that would make your case stronger than the that's right actually i is there any are you do you do you want to point out any factual difference in your case especially the pap would make exactly ok a in terms of how the administrative hearing wor the settlement agreement is wrapped into the administrative law judge or the hearing officers order then that will sufficiently have the administrative oversight or imprints who are to constitute the prevailing party in the into a round hole so it's big but i think that it is somewhat analogous and a district position is that if the administrative hearing officer worked to wrap that into an order that that may very well constitute the division imprimatur but we don't have that medicaid but we had with a mediator who was not a hearing officer someone in that that was a complete neutral the  wanted to address something that the attorney for p n mentioned in terms of what you can being kicked and the rule of law in ninety  can and which essentially they had to address what the definition of prevailing party was they came up with a rule of law that judgment or consent decree and implied in that rule was that traffic a lot that you can enter an intersection only if a green light or a yellow light and says nothing more implied in that rule is that you cannot answer on a red light and we think that the subset of private settlement agreements therefore doesn't follow through into the broader world even though the circuit courts have somewhat expanded on what the definition of consent decree is would you agree that they've met and also to address counsel's arguments concerning involving weyers in these situations if the task is going to be that any private settlement agreement under the idea is going to qualify for what we think that's going to do it's going to take when a lawyer gets involved it's going to take the case out of the arena of the ip meeting which is collaborative and turn it into a due process hearing and mediation mediation and they agree to those things then they have to pay us and you don't have to worry about it so that is taking it out of that collaborative process and putting it into a more adversarial just for the sake of warding fees well what would you calculated rest when they can when they get through due process here and we agree with the seattle school district that this is just only a fraction of cases in which other parties pass you end up going to due process this is really quite a good system when the when the parents and the students work collaboratively these are people in special education that really care about students the polies appears to imply that some of the school districts are only interested in a or not they're interested in making sure that the students i guess the best education that they have so i'm going to reserve the rest of my  authorize the action for fees of twenty u s c section fourteen fifteen subdivision  you know mr cochran if you could maybe any media just missed it somewhere if we if we were assume for the moment that a judicial imprimatur is required where  and now you have something you have a contract and if a party breaches a contract the other forty can file a legal action which that's your basis and you say that because we have a body of would permit you to enforce a private settlement agreement the private settlement agreement was brought about by judicial from mater or can be inforced  an action a unilateral action of the school district such as in the case cited by the power of j c vs regional school district where they tried to expel the student and then drop the expulsion process it's very same case w process this is something i've been seeing in california as well where they're trying to get around barrios but not this time they refuse to have settlement agreement but then they'll they'll send the parent in i d p form offering a more appropriate placement and the no judicial oversight no it minutes when i came to i think that everyone here knows that the system is a very important you know it's just important social issue and we have to deal with it and it can anyone that's been going to court for any period of time which all of us happy that you know sometimes one side is completely and right sometimes the other side is the end it really is factually dependent but we have to you know we have to deal with the context of the law and in these situations and i don't have any doubt that sometimes parents act badly and sometimes that school districts act that like that in terms of this particular case we've got to wrestle with you know you know what what's required under the id and what does you know what i thought it you know in terms of  the policy really out of the equation because we're talking about the term prevailing party which the supreme court's diseased term of art and that therefore the policy arguments may not necessarily apply because there is an applied that's harm across a variety of statutes and even though some of the other circuits have addressed the policy arguments made by the students they have done so with reservations saying you know we are mindful that the supreme court is the policy arguments really are not appropriate