good morning your honor daniel consults on behalf of the school district made piece the court your honor the appellant here of the school district has submitted a number of issues on appeal including the attorneys fees issue but it really like to concentrate on something this morning that's paramount to not only the women's heart union high school district but also school districts across the strip state and that's whether or not it can rely on the contracts that are reaches with the parents in cases specifically in this particular and then again at the district court level your honor the district appealed on only one issue and it was the nd manifestation determinations as you may remember there were two instances sorry two instances the resulted in the student's removal from his educational placement the district specifically only challenge the nd when it had prevailed on the st suspension or the st manifestation determination and subsequently that both prosecutions were consolidated as related  determination by the exposion agreement was not raised to the district court your honor we did submit the section in our rd brief where we stated that it was part of our complaint where we specifically said  only thing that you can point out is race in the complaint and then not raise later on when the when they began arguing over the over the january now your honor right in the district court the that this school side or the school actually focused on i dress in the substantive allegations time you started like by telling us that this is really important for school districts not not just not only for william harkat for but for all school districts as to whether they can rely on contracts with parents but it wasn't important enough for you to raise for the district just finding that wasn't enough and the district court felt like you had to address the argument that's the problem your honor that i would respectfully submit that they were nonetheless raised and dangerous of it did you bring it up in a motion for reconsideration we did not file a motion reconsideration in this case your artwork didn't address this principal argument seems like it would've been a good opportunity to have said your honor we feel like you've overlooked something that we raised your honor a think that in this particular case there were a number of issues with the district  finding that we felt that we had to address st specifically these issues regarding age of age limit or something your honor these were really until we did have a basis and these were really long arguments said we had to respond a very long argument to say you administrative law judge in that particular case let me ask you about that sort of my questions were going to be about there is the i'll call it the january two thousand and fifteen incident and that's where the ail jay concluded that it was not a manifest of the disability his behavior that day manifestation the the school convened a manifestation determination to review the misconduct in this case the student threatening other students with bodily harm and among other people school psychologists school teachers director of special education to sharon am right were correct and you are going to court was not correct but now as it links to the st argument you used you came out with that agreement was tied to the finding that there that this was not a manifestation correct right there on it so if it if we hold and we have talked about the case i don't know what these two think but if we were to hold that the district court was correct and overturning the decision that the january incident was in fact a manifestation of a disability then doesn't this whole issue of what the contract said or what doesn't come just go away well arguably your honor the contract would still be important because pursuant to the contract the parents we have the right to challenge  right but that was the whole contract was based on the idea that this was not a manifestation i mean the whole idea was that when they signed the contract as i understand it was because the school district concluded look he was acting he was misbehaving not because of a disability he was just misbehaving we're going to suspend him unless you sign this piece of paper if it's in fact that was long from the beginning that he was acting the way he was because of his disability that it seems like everything that follows from that would be washed away well your honor and so let me is suspension of the expelling grace so so your honor in this particular case upon finding that that the student could be disciplined like a general it's during the recommendation was made for the student to be expelled pending that expulsion and there was approximately a two month period while the parent was waiting for the hearing on the expulsion they had the right to challenge all of this including the findings of manifestation determination as part of this agreement they waive that right to of its st paragraph one that the parents are waiving the rights to all to the expulsion hearing clean waiver of the right to all notices and times required by sorry in terms of progress stature regulations to represented by so in this particular case your honor that the parent agreed to a suspended expulsion contract this was per the parents request that was this was modified pursuant to the parents request and so this is the the the contract that is issued the a student is expelled or expelled from receiving education at a school site within the district and in this particular case by going to suspended expulsion contract the student was allowed to continue receiving education at a school  is something that he would not have been able to do had he been expelled as a result of the manifestation determination your honor the the i d f specifically says look once a student misconduct is not related to their disability is school commits misconduct that's not related to their disability they can be disciplined just like any other student including being expelled been suspended and three hundred dollars specifically list the only obligations under the id a that a district still has to that stupid this is why we made the argument that when the student this particular case three months later decapitates a lizard which resulted in the violation of the suspended expulsion contract the district did not have to hold the nd manifestation determination at that time the district was not expelling the student because the student had to capitated a lizard but instead it was just reinstating what had previously been suspended pursuant to the contract and so this all student with faith and that none of the procedure violations resulted in a denial of faith the issue that did come up was that the relief that was being sought in that nd hearing was dialectical behavioral therapy what we argued at the time was sort of this experiment medical mental health therapy and so the judge not the mystery of life judge found that the district had not denied the student fate and denied the request for the dialectical behavioral therapy because yeah and so that was that was heavily litigated and i was brought up in the district court that whether or not someone needs this particular therapy doesn't get to the question of whether they need that there be in order to access their education right so is it a more basic example if i have some sort of malady that i need assistance for that may be fine someone may say hey you need a doctor to reset your bone but the question is whether i need that in order to access my education and so that was the entire argument whether or not the student might have needed good morning me please the court ben conway on behalf of the family your honors the panel should affirm the district court's decision because the court saw this case for what it was an affront to the i d e a the idea no what there's no question that the student demonstrated serious and unusual behaviors in this case we have a twelve year old cutting his wrists on campus the system principal thought he had quote serious mental issues any educator should have said get this kid some help heart provide a generic treatment as usual for two years despite it not working as his behaviors escalated the circumstances warranted a timely and appropriate evaluation that idea demands and heart did not provide as such no one knew what his disability was until over two years later when the family obtained the independent evaluation of dr stevenson the court was right on the discipline claims it was writing on his knee on the student's diagnosis of borderline personality disorder and it was right on his need for dialectical behavioral therapy as you say meaning and or that id say at what point when a child is mentally ill set such that his behavior is threatening violence and harm to the students around him is that something that can't be addressed by the school district and needs possibly dressed in cement their manner i think your honor that would depend on the circumstances of the case so in this case all of his behaviors were at school and should have been initially determined at school in an appropriate and timely evaluation could have aided in the determination of when that was appropriate to cross that line so in may of two thousand and fourteen the school did in fact have students psychiatrically hospitalized from school after the razorblade incident that would be an example of when it was appropriate to send the student out he was actually cutting himself and threatening other students with a weapon i want to touch briefly on the waiver issues that my colleague discussed with the court the l g a got this the l j and the district court got this right vs doe the supreme court's decision finding that congress in an acting idea intended very much to strip school districts of the unilateral authority that they had previously use to exclude students with disabilities from the educational settings it would be an affront to read a waiver of discipline violations under california education code as a waiver of these federal rights under idea hearts arguments on the forfeiture are not founded i appreciate my colleagues arguments but the three things cited in the rd brief oncet on cross appeal like actually we get to waive rights and all e stronger argument is that they forfeit it which is i think what the tenor of our questions was your your argument is is that we can't enforce these agreements at all and that seems to me to be a very very strong position that doesn't seem to be a well founded position i apologize your honor i was unclear i'm saying on the facts of this agreement and this is in excerpts of record page three hundred and fifteen is where clauses d and i believe maybe on three hundred and sixteen those are the two waiver clauses so the  waiver clause basically tracks california education code forty eight thousand nine hundred and eighteen which is the procedural protect standards on an expulsion that's paragraph d paragraph i purport to waive claims related to the notice so those waivers waived exactly what they purport to waive a direct challenge to the disciplinary proceedings this is what was brought up in garcia versus los angeles county board of education where the california supreme court w reviewing an appeal of an expulsion and found that the expulsion timelines are mandatory interesting all so again i apologize that i was i'm so i'm still not following your argument so are you arguing that the waivers cannot be enforced if we if we thought that the it's they actually cannot do this no your honor i think there are two distinctions there one is i'm the one hand and i appreciated judges owens comment judge owens comment that the court  are going to expel him and the parents that look that's that's way too harsh give us another chance we're working with him we're trying to do what we can we're trying to get him outside help we're going to do everything we can to try and make this right school district says ok if you're willing to not put us to the expense of the hearing here because in the facts of this case there was no waiver of claims under idea which is what this case is brought on their kinky sasson that deprive you is asking you hypothetically ok that's pretty side for a minute that maybe you and i might agree that the standards under the traditional capable of repetition of debating review standard this case began when student was in th grade but we do we have injunctive relief issued by the district court here yes your honor and in judgment of the district going forward that there will be lost this once before we've got it we may not want to do this again but if there's another student can you come in you're representing that students like you have violated and an injunction issued by the just reported case no not based on this particular order however what does have ongoing effect is the district court's decision to axe expunge all of the records of the expulsion this is well within the court's discretion to do so and that has an ongoing effect on what's left of this case if we agree with you that is to court was correct on the manifestation determination but on the one hand what's left is exactly what i just described to b and i think that if the court found in our favor on what is issue three on appeal the january two thousand and fifteen behaviors that would address that and the other is the general principle in these cases that are capable of escaping review why don't mean in terms of about can you really waive this or not do even get to that question about whether you can waive the right to challenge a determination if it turns out the district was correct that the determination was was wrong in the st place yes your honor this court can continue and the th circuit precedent on this although it's not in the briefing is a d versus hawaii department of education seven and thirteen decision in that in that case the th circuit it was another special education case found that strict adherence to the same party exception in the same rather started in the same party capable of the same party prong of the capable of review analysis does not always work in idea cases for exactly the reason that's raised in this case this these issues arose when student w grade and now he's done with high school and frankly this case got to the th circuit in rocket speed relative to many other cases is they way we've their way through the federal courts again i'm not phrasing my question carefully enough we have the january tw now know are not true and we need to resolve the legal issue that judge by we was discussing if we agree with you that the district court was right that the l g a got it wrong in the st place no your honor the court and the l a county rent control ordinance the lower court had found that hud exceeded its authority and this court found that the actual correct answer was that there was no conflict between the one hundred regulation and the rent control ordinance because there was no conflict or rather because even though the reasoning was different the court was able to uphold and then a related question is i know you filed across appeal in this case i take it we get to the cross appeal if you lose on the merits of this case then but if if you get what you want we don't need to address the cross appeals are correct yes your honor can i go back to another question that relates to what there's a school district ever provided that j well it's not in the record but afterward the parties worked out a solution where the district incorporated d v t mo dalat is because of the family's inability to transport all right so they did incorporated and that was following the district court's order yes it was not strictly following it it was not a comprehensive d p t program but that was by agreement of the parties ok so we were to reversing on that then accomplishes nothing because he got the services that he wanted fr was talking about the not expedited cases of three and said that i'm paraphrasing here that heart basically failed to deny this student a free appropriate public education that's on page three of the actual record but then on page sixteen of the excerpts of record he seems this is of course seem to say that they did provide a fake so can you help me understand that that seems to go with how the say that you don't simply count issues but rather look to the overall relief and here the family got all of the relief that they sought so even though if you if the park court were to issue cow we did not prevail on a majority of issues nonetheless because we got all the relief we would normally be entitled to close to a full fee nonetheless in the exercise of billing judgment the family cut fees by approximately forty percent of their hours to account for claims that did not succeed and in an attempt to reduce the contentiousness of the feed request i know there have been some attempts to mediate in this case we've looked at the docket as urban attempt to mediate the fees not separate other then the central district has a standard meeting confer process which occurred before filing the fee motion yes the district court did maybe problematic findings on faith those are detailed in our issues six on the snap on faith the real issue here is the manifestation determination in january tw fifteen that was amply supported by dr stevenson's evaluation she met with the student for over nine hours across three sessions sure viewed five hundred pages of records she talked to his teacher she talked to his parents she talked to his therapist attempted to talk to heart staff she did a very thorough evaluation mr meir is who conducted hearts evaluation did not talk to any classroom teacher did not talk to any therapist did not talk to either parent and did not even talk to student in the course of the evaluation the only standardized testing that she sort of administered was to mail home a twenty minute questionnaire so a doctor stevenson's report amply says dr ste it did not need to in this case because we exercised forty for approximately forty percent cuts in line item billing judgment this was not just an across the board forty percent cut i want line by line through twenty pages of billing to make those  and determine what was appropriate  if we were to send this case back on fees one argument you could have is that we actually got paid a lot more yes i could certainly make that argument the other thing we would probably have to relive again is the reasonable is of the rates which we did not cross california accepts almost one billion three hundred million dollars with a b dollars every year in return for its guarantee that school districts will comply with the idea hard except its share of this money and that's all that number is not in the school expulsion that idea was designed to prevent the court reached the right result on students diagnosis of borderline personality disorder the right result on his need for dialectical behavioral therapy and the right result on the manifestation honor st thing i'd like to start off by asking for or provide the citations previously requested in this can be found in the rd appellate brief page three and four and in reference to the complaint they can be found at the educational record two or nine paragraphs twenty there's also the reference to the a stop will form of defense that was raised in this case and also to the administrative and to the briefs submitted in the administrative proceedings which can be found in the appellants further excerpts of record this is the big issue yet it is the big issues and i still understand why wasn't in your opening your no we actually raised this issue in the opening brief your honor we raise the issue of whether the district court had erred in allowing this issue ness that your honor brought up i agree with the with the students in this particular case that this issue is not moot there's a real issue regarding the accurate miss of the student records here as you know certain records can be used by employers if a student decides to go join the military there's a real issue in making sure we have equal your record in this particular case were over this issue of dialectical behavioral therapy in the relief that was granted that's really important for school districts i know pelley raise the issue that calls for probably raise the issue that the districts get to ten or california gets a ton of money to provide services and that money is spent and more on on special education students school districts already have to provide related services in this particular school district provides was called educationally related intensive counseling services provides therapeutic settings but in this particular case the request was too much it was an actual request for what we characterize as medical services and asking school districts to provide these medical services now i know on the brief this was an address so i don't want to spend too much time on it but i i disagree with with a counsel for pelley that the district somehow provided a modified dialectical behavioral therapy part of the argument that was discussed in the administrative law judge decision was whether this required outpatient services the district provided what it called education related intensive counseling dialectical behavioral services through an outside agency as a result of the court order in this case services and whether the student ever needed that in order to access as education and pursuant to the characterization of where the student is at now those services were never needed in order to for the student to access his education but instead with the district had offered all along and this is