two related orders under review today i want to focus on the august fourteenth two thousand and fourteen feet order and speak briefly about relief order of if necessary i want to focus too on the fact that this august twenty four thousand feet order was followed followed and october twenty thirty nine feet order that had initially denied all fees in the case and entirely the two how you don't want to talk about the sixty i do at the end of my discussion i would like to discuss that i think that the key point and the most the most egregious error in the court's underlying decisions is the fia ward itself the relief award i think is also an error but i think the fia ward probably deserves most attention all right and that includes the cross prevailing party status analysis that is required under farrar following the case with civil rights action and it ignored its october twenty third predecessor order in the on the equitable side of the argument globally you know that the fact that three if you want to fight over who's going to pay and you've got a kid that's going to get kicked out because no one's going to you know they can't agree on it they have to go forward right and then so and so really if you sort of look overall i mean we have a case the legal ruling n a s which i realize is a non pab but if you kind of look at the public policy of all of this in terms of that if if if we were to hold that that the the student is the prevailing party here and that allows people not to fight about this and have people worry about you know what they're going to get kicked out of something they either they've got to work it out or someone pays and then they fight it out after that and you didn't do that here everyone was going like this and it went all around but still you got a one upon the filing in this is in the record numerous times including in the district courts are tobar twenty thirteen or which is that to seventy nine to eighty two from the very filing in september of two thousand and nine the underlying administrative law case there was no dispute between any of the three agents that show me the money well was any one hand yes in fact they were prior to irvine taking over prior to that and then the irvine took over all the agencies agreed that one of them was going to be responsible now let me focus your attention on this point because this is orange county paid hard they paid up until irvine paid and then irvine paid there after illiterate and then read what's at stake in this case merely that there was and then her fine paid after but now you're appealing that right now no that's over that's long over but you don't want to pay for the attorney fees right and i'll tell you want in october of two thousand and nine about two weeks after counsel filed the administrative case she filed the thing called a motion for statehood which is a motion that would permit all the parties to just stay in their current places irvine keep paying him till he graduated high school which is another key point that motion was not granted nor denied and the reason why it was not is because counsel at that point according to the o h judge quote k g s motion is not supported by any evidence t cages continued attendance the daystar of the educational placement is in any way threatened pending resolution of the financial responsibility issue of hearing that's it your six o two further he said k g presented no evidence showing that there was any urgency to a resolution of that issue is jeopardized in some way by failure to resolve the financial responsibility issue that was in october of twenty zero nine there was never a new motion filed there was never any risk to his attendance at the school this is all br second and thereafter at that point counsel had expended approximately ten thousand dollars in securing a high school diploma for cagers and no one had stood in his way no one had stood in her way she filed we all agreed it was one of the three we agreed that he would not be kicked out we agreed that he would be funded through his graduation and he was and the court a claim to that decision on the part of the agencies below when he anything and there wouldn't be any attorney's fees and then look at it this way right now is that your position that they should just trusted you they did trust you and they they did not need to pursue yes precisely what one has at risk here nothing our was because in farrar the argument was plaintiff at the agency and they prevailed directly as it was or any determination of the attorney fees amount as of april twenty ten no because the there was no fuel or there was no fee motion made at that point the there was no decision at the o h level made at that point or if there had been but there was no appeal of that until i think the trial briefs were filed in september tw became purely academic but wasn't cagey named as a party at some point all the way through your honor but the the you couldn't ignore that could it let's look at let's look at the look at this fact and i was you know that you're not really answering in response to the briefing here they put in the s p d order which was denied it's entirety for different reasons but that attorney that students attorney had as a through the ninth circuit had generated eighty thousand dollars in fees those are denied for time on this issues and other reasons but but here this council not missed if anybody prior council expended twenty two thousand dollars of the case to get a judgment which occurred she spent sixty six or sixty seven thousand  are served in this litigation what should you have done or what would you have done i would have monitored the litigation to ensure as had been promised all along including from the oh it's judge on board that one of the three agencies would be responsible but that did not require as i was as i was about to say twenty two thousand at the district at the oas level sixty some thousand at the district court and one hundred twenty thousand more than one circuit for that to make the same argument and i also want to point out that this is not a this is not a typical litigation the parties to this matter stipulated to a record of maybe an inch and a half or two inches of documentation and a set of stipulated facts there were no depositions there was no discovery there were nothing there was stipulation on a written record stipulation to written facts one hour or two hour oral argument before the judge then there was the district court appeal on the very same issues and on the same record and then there was the ninth circuit appeal on the very same record but didn't the trial court take into account some of this in determining yes yes that's correct but but did not follow farrar in the the most important legal error the most obvious legal error in the most critical legal heir was that in farrar it's very clearly stated that the technical or de minimus outcome determination is not applied exclusively it's actually applied primarily to the post prevailing party analysis of whether a an outcome is technical or to m are running out of time and i want to ask you a question about it appears that when determining the amount of attorney's fees the district court incorrectly stated that k g did not participate in the briefing of the appeals why shouldn't the district court's reduction because he it was a reasonable accommodation to what he clearly found was an otherwise unreasonable amount of time spent for the very reasons i just laid out for you that the same record applied all the way through and once once council got a judgment against one of the three agencies in november of two thousand and ten there was there was literally no risk no one made a motion to dismiss no one threatened a motion correct and so that cost money to file that brief right that's true and the trial court said that they didn't participate as abrasion on it he also i don't think he didn't say that they did a brief anything in it's the key weighing factor here is that in the october twenty third thing for your order the court correctly found that it was an equitable given that this was an equitable analysis under which the court has to operate it was an equitable for the who never took an adverse position is that is for it to be awarded fees under that under that scenario any fees or at that point he said no fees correct but he he made that determination based he this court itself if the underlying district court made the determination that the he's a technical and a minimalist once it was determined that one of the agencies was going to be was going to guarantee the outgoing mail so if if we were to say if we were to accept your opinion we were to publish on that this which would be contrary to what says correct and say that they're not the prevailing party then in the future agencies can do the exact same thing no you are exactly not and let me explain why we're not asking you to say that they're not the prevailing party that has them decide we're saying to imply the post prevailing party analysis that is called for and for our ferrar and see that they're the prevailing party do they have to but that there isn't anything published on that is there you're just saying it's based on a us based on a the underlying decision just selma determined that a controlled and they were the prevailing ass's as a non pap right right but it still guided his decision and i think that is just the law of the land at this point we're not asking you to overturn that and this is maybe the key distinction when you look at farrar which specifically says that is not enough in that case the court ordered order prevailing party status the supreme court there was no shifting of value that occurred at that point in the case this think about this this way sometimes people ask me why do you represent the school district and not the kids with special needs we represent all the other ones this so i understand that absolutely one hundred seventy five thousand dollars just went to court ordered ultimately pays for three school mom one has the problem is when you have to do a faith that it you know we can't look at i understand there's only a small pot of money i know districts are not rich and they have all these other kids and every time they have to pay big judgments but by the same token we can't go against the law because if you don't conduct yourself in accordance with the law mouth and starving children over here i mean i'm quite familiar with that i'm saying that for our demand that after a prevailing party determination is made as was made here that the court must look to determine and ten for also counsel that at the time of a settlement or judgement there must be some in order to shift fees there must be some direct benefit to the plaintiff as of april twenty ten it's not published right well that's great so what is there out there that says that in this instance case he would be the prevailing party because i'm understanding him to say he's not contesting g was the prevailing party by virtue of obtaining a change in the legal relationship between the student and one of the entities who now is trying to put on these facts let's just take the facts of this case what is the published out there that establishes that the district judge held that k g was the prevailing part right but i'm not talking to why we would want to publish one way or the other because a asked is a non correct that's and the district court was guided by that and but there really isn't anything out there that says on these facts that k g would be the prevailing party right i'm not aware of a published decision that would go directly to this particular fact situation i would note however that in the administrative decision at the end there is a requirement to indicate who was the prevailing party and that did indicate the k g was the prevailing party so there they never changed the facts were there from two thousand july two thousand and seven to two thousand and nine the orange county of education voluntarily agreed to fund the placement pending some other courts some some court resolution one way this very difficult complex issue as to who was responsible circumstances in july two thousand and nine a decision did come down from an administrative office in an unfinished set a separate case but on the same issue that held that it was the school district that had the legal responsibility at that point the orange county department of education gave notice that it was no longer going to fund the placement and in september on september one there was quit school district september one of what year of two thousand and nine subsequent to this and the school district said no we are not going to fund this placement ms cromer was appointed by the superior court decided daystar had not yet actually given notice it was discharging the student we knew it with they knew it was coming the conversations had been held the funding was no longer there but the informed by council for student the daystar was preparing to discharge the student based upon the suspicion of funding by the county for patient irvine flight school district only  these other entities who wanted the case to go forward this just wasn't raised below wasn't raised by the district but i'm looking at it from the standpoint of your client your client was the child and once the child had graduated  have these three governmental entities fighting each other but there was agreement that one of the three no matter what would play i don't never any rush there never was any such agreement there was no stipulation on the record any that one of the three would pay there was an understanding that under the statute it was very likely that one of those three was going to be the responsible entity there was no stipulation but that being said no one did move to dismiss k g th school district certainly knew that that the student had graduated they didn't move to dismiss on mootness and k g was still there is there any risk that kate she could have had to pay for that situation your client was never at risk it seems to me once that child had graduated now there were some residual issues with respect to attorney's fees but by that time i did it didn't matter it only mattered in so far as that as k g was still in the case the case was still proceeding but your are this issue really would go to how much he should be awarded if the argument is that after april two thousand and ten  there was no point in actively participating in this litigation then that would go to the court's determination as to how much fees to award and a court reduced by how much the court actually made very substantial cut s there was a ten percent cut to begin with then there was a fifty percent cut in the appellate court proceedings and then after all that was done there was a twenty percent and we're actually appealing both a fifty percent cut not that there shouldn't have been a cut but that the explanation for the cut and the amount of the cut did not seem was not justified by the court's explanation in terms of the twenty percent cut the explanation the court gave was that the issue of faith was not at issue but that is in fact not a valid reason for giving a cut because under the i d e s as this court has observed in the white house a case there are other issues besides faith that warrant pursuing the i d e a remedies and would justify an award of attorney's fees so simply because this wasn't fate doesn't mean that it should have been cut and moreover there was no explanation as to why twenty percent versus ten percent versus five percent this was just an arbitrary across the board cut so we're not saying that the court couldn't have cut the court considered all of these parts you know whether the briefing was one that one side or the other side or who she supported the court was aware of all of these things and took those into consideration made the cuts it made also was there any chime after june of two thousand and ten when you might have been able to make a motion to dismiss as to your client in terms of this three way litigation i don't know your honor i was not litigating at that time and i would have to do some research on the ability of a party to be able to dismiss out when that's this wasn't an was plaintiff up to a certain period and then k g became the only defendant right if the defendant tries dismiss the defendant out what happens to the rest of the case well the defendant shouldn't care of the circumstances well that that may be and the court certainly could get take that into consideration in deciding whether to award any fees after that date or how much fees to award but again that was the court's discretion and these arguments certainly were presented to the court and you know that the court made the cuts that it made our argument across our hill isn't that the court views discretion in doing reductions it was the explanation that was provided didn't justify the reduction that was was imposed if the court had other reasons for doing a reduction it certainly the discretion to do so but the specific reasons it gave and the specific amount of cut didn't justify the cut that was made what about my question that i asked were that the district court it that casey did not participate in the briefing at the appeals were mystified we don't know why the court made that finding it clearly was erroneous ok anything f council yes i'd like to briefly address this issue of the farrar case and how that interplays with the prevailing party issue in florida the court was actually dealing with a situation that it had been sort of created in an earlier case called texas state teachers association b garland and in that case the court held that if the result six of the degree of success is de minimus that essentially you're not the  party so in farrar the court backed away from that wanted to clarify its position and what it said is well technically speaking you may be the prevailing party but if the result is demanded miss you really you don't get fees anyway and in justice o'connor's concurrence and she was the swing vote on this issue she explains how to how to understand these two cases together and what she said is look and issue the significance of the reviews whether it was trivial or de minimis it really does go technically to the degree of success but it really doesn't matter which column you put it in whether in garland they put it in the prevailing party column and in farrar they said no it really goes into the degree of success column which is technically correct but that issue of whether this was a trivial de minimus result really goes to the degree of success not to prevailing party status and so you know where the plane of success on a legal claim can be characterized as a purely technical or de minimus the pain of can i claim fees as prevailing party so these concepts really do get switched around but technically speaking if it's a de minimus technical result that goes to the degree of success in the case and what happened here is the district judge when we first looked at it said when i don't think this is a significant result and so i'm not going to award any fees as prevailing party you know  award was appealing with exact same judge exact same daughter exact same rationale the powell said no this it really is a substantial outcome this got all the benefits that they were seeking here this wasn't just oh judge you made a mistake by applying this to prevail party this was you know this was a substantial outcome and it was exactly what they were trying to see you know there was no way to win any more than what was won in this case and the and that is what persuaded the district judge yes it's not controlling authority but that since a district judge had made his decision in k g based solely on his decision in a s and now he was faced with a panel saying and we think you got this wrong he changed his mind he was persuaded that in fact yes this was a substantial outcome this wasn't trivial and this was deserving not only prevailing party status but of a feeling and then the only question is how much so this idea that somehow the district judge got confused and applied the wrong standard and didn't for didn't do for wrong is simply a red herring not at all the case by finding that this was not a trivial result that really went to the issue of substantial success on the merits and therefore entitle ones which are nice fees thank you counsel your time is expired the case just argued will be submitted for decision