please the court my name is david bernie and i have the pleasure of representing appellant rina c in this matter as this court is aware this case arises under the idea of a section five of four in the a d f a and involves the lower this court should reverse the lower court's decision for today's argument einsteins to focus on three issues that center around how rena c ended up receiving more favorable relief than what was contained in the school district attorney's letter before it goes to the school board for a school to resolve the case then have the school board approve our position is that for a ten day offer you don't need to have that situation every time the school district you know there can be one ten days after that the school district makes frequently in our practice there is one cent they offer and it wouldn't be that impractical for a school district to provide authority for purposes of a ten day offer especially where ten they offer care is the owner's provisions that if a parent does not ends up obtaining more favorable relief then they are going to be barred for all of their attorneys fees from the point at which that cindy offer was me so for purposes of what you're saying if it was if it was sort of normal in the course back and forth discourse regarding the goshi asians i may agree with you but for purposes of a ten day offer it seems to me appropriate where the penalty is going to be something as onerous as having your attorney says cut off that the school district in the first instance should go in and have a however it's standard contract law that a party in years have the authority in their client's before they can make an offer of settlements you need authority in order to do that otherwise what you're really doing is asking the other party you're contract is an excess of one hundred dollars so for example the issue of attorney sees if the boy if the school district as part of their ten day offer is going to offer to pay for attorney season costs they're going to need some sort of approval from the board in order to have a federalism where what that the federal government did was they created a series of requirements that the states would need to comply with if they accepted federal funding with lots of holes in interest this is ease that the is the statute that you're referring to is to prevent fiscal waste and to promote a school board accountability and so the idea that the the idea that you could create an offer without having authority and then the school board gets to approve that started this race the whole point of a rule sixty  regarding our position as to whether or not rena c ended up i was even more favorable relief one of the bedrock areas of law that you're supposed to look at is you're supposed to analyze the the whatever evidence in city offer and then based on puting facts that were not part of the offer itself ruled that the parent had not received more favorable really well let me ask you this year you offer me i would suggest that there's a third thing that overdue the third thing you could do is you could say this is a perfectly clear offer that's been made this offer does not include pendency this offer does not include one on one tutoring this offer does not include rena c's attorneys fees and costs and because it doesn't include those particular provisions i am going to reject this particular offer however i am going to reach back out to the school districts and see if i can negotiate a  rejecting the offer and that's what happens so we we rejected the offer and i'll say that in hindsight i would think that the better practice if i had to do this again would have been to reach out to the school districts within those ten days and negotiated that agreement within those ten days but there's nothing in the idea that requires us to do that there's nothing in the idea that says that if it's some point we have seen more favorable relief the fact that we didn't as as we all said you're right we don't know because it's so so i can i can answer that question there's nothing in the agreement there's nothing in the offer that mentions pendency so what we need to do so for  our perspective it wasn't in there or or so and magine imagine the situation ok we received this offer as is my duty i would have spoken so my client about the offer spoke i spoke to my client within sensi if you look at her if you look at the motion for attorney season cost that we filed they'll be time sheets attached to that and you will see an entry in which i spoke to my client within those ten days in fact i then you'll see lots entries where i spoke to opposing counsel regarding settlement over and over and over again to not within those ten days but you'll just generally get a sense of what the development of the case was through those particular time she so imagine if you will without me disclosing attorney client confidentiality i spoke to i spoke to rena six reus is said to me because this was not her first time involved in a due process hearing with the school district in fact they had had one previously and she understood what the concept dependency was and she had what she would consider and what i would consider a healthy distrust of the school districts based on the past due process hearing and she said to me mr bernie does this offer pendency and i would have said well if you look at the current prevailing law in the third circuit the answer is no there is nothing a third circuit that says that the offer to pay for tuition is sufficient to confer pencey on the private school and in fact the leading cases i so there are there are a series of cases that the lower court cited in its opinion one he says from d c another case evans another case is from the second circuit most of those cases stand for the proposition that agreeing to pay for tuition is not enough to compare pendency in addition to that the school district has agreed to place the students at the school and the term placement is a charm of art arab placement so what that what that signals is they are not necessarily agreeing to this as a placements and the case law from at least from the third circuit both the kale decision which you anticipate what i was going to say about kal but place the students at the top it was beyond simply a tuition in agreement to pay for tuition and that's a vet's the distinguishing factor the school district would have been well in their rights if we had accepted the offer the school district based on the current state of law on the third circuit would have been well in their rights to say tenancy does not exist in the private school they would be my own the rights to do that and then when we had had our this offer we would then been relegated to litigating whether or not part of the point is the part of the point is that if you don't know what the offer said then the offer is typically construed against the drafter or the offer or and that makes sense because they're the are putting out the offer and it's the parent who's the one who's risking giving up a lot in terms of their entire case by taking it and so the courts are typically held that where the offer  offer is construed against the offer or not against the offering and understand your contract principles you don't penalize the parents or the offeree for the for the drafter of the offer ambiguities and lack of clarity but to get in so whether or not we're substantially justified the answer is yes a party who does not who was not offered their chinese season cops as part of that offer is certainly substantially justified  not have been able to afford the services of an attorney without having some measure expectation that she would be able to return a team her attorney sees that as part of the litigation in fact courts around the country have typically found that that's exactly correct in the reason for that is that congress at some points amended the ideate to include the handicapped children's protection and the purpose of that was to make sure that parents who cannot ordinarily afford the costs of litigation have the rights recoup their attorney's fees if they were prevailing party part of the purpose this the congress was very concerned about parents who already are bearing the costs of trying to provide for the living needs in the education of children disabilities and some children ha g very severe disabilities they didn't want to add on the additional burden of being able to sue under the ides yea without any hope of being able to recover their attorney's fees and costs and so this was a critical parts of the idea and so if the school district does not offer attorneys fees and costs as part of the offer courts around the country recognizing that have found that individuals parents are substantially justified in rejecting the offer because otherwise it may be a losing proposition they may end up obscene ng value as a result of an outcome but the cost of the attorney's fees may put them at such a at such a loss that it may end that we receive better leave but i understand that for purposes of this particular scenario we're not assuming but at the very back i mean but at the very least we certainly is receive equal relief i guess i would argue we would see more but we were in the same position fact the school districts when they did make some offer of attorneys fees months and months down the road they simply said it can come out of your client's compensatory education which was really no offer at all have done in the past but to answer your question i think going back to basic principles a lot of the debates that we're having today can be answered by framing the reference back to the purpose of the idea i d s says it's to ensure a free appropriate public education to the child this is the laws about the child but this case is about fees so keeping in mind that basic principle and keeping in mind this court's precedent whatsoever that simplicity use of the offer the few words is informed by years of experience of frustration trying to use a ten day offer effectively no matter what we say in these offers we will get the responses back sometimes completely different not in a vacuum it is done in the context of what commanded so energy for example cope with talks about pair perspective the only perspective we have a what's on the parents mind is what's in that complaint notice that complaint notice in this case sought to wish reimbursement not even fronting it by the school district with wish reimbursement for one year didn't ask for transportation and made no mention of one to one tutoring and as the district cou something that's left unsaid so rana see you cannot go back after the fact and say we were substantially justified because you didn't include tutoring when we didn't even know about tutoring that's not justification certainly not substantial we go back to basic principles the law requires relief for the child the law does not entitle the attorney to a feat but can and says it can't get a fee until there's the judicial print or the idea of a ten day does not require fees i do have i've known experience attorneys who if the case settles quickly don't ask for fees so my client would like to recommend to my client to right and i don't know the source of law that says substantial justification can be found in attorney's fees that are not required under the idea or to benefit the child over not too bold to assert that those cases that find fees as a reason to reject an offer are just wrong in fact one of the problems with fees unlike remedies for the child remedy for the child is rather fixed fees are not they constantly go up and if we were to have fees in the offer and then we get a call saying well can we do this that the other thing thirty days later more fees are been incurred i'm not familiar with that one by name expression and i think this is the point hinted at at the gary g case went when they suggest although he didn't rule that fees are not grounds for rejecting an offer and i keep coming back to this offer was very favorable to the child would have multiple parties on phone and e mail and we were hammering out the terms of this his order was to bernie and i and my client and his quiet and hearing officer and as i noted in the priest to me pendency was just a throw away because it's already there so that that goes at the time we have the invoice when we went to the hearing in fact saw the exhibits we were always of the mind to rishon included those costs so that's just another we can add it in to get this situation done mr burney's reply brief insert the history of the between the parties there was an adverse history clearly colonial got this that this offer out within fifteen days of receiving its complaint notice there was no desire to repeat what occurred before colonial wanted to get this over with yet to settle for the child and shorten the amount of fees and when we went into the us a over the years i've always advise a client when we do a ten day we also have to understand that fees were included up to that day i now know that i was wrong and given that guidance but in just recall from zip being the distinguishing character there is that whatever the party's agreement was there was no no intent or notice from the school district to the parent that the school district wanted to bring the child back or wanted to have another placement offer as opposed to an i'm a be getting my cases backwards on apologize as opposed to those other cases where we agreed to place a child for one year and then we're going to issue an id for whatever place and that that that's the two character of the cases zombies on the one side and others on the other side but i don't think you need to go there this court's preceden very clear from from drinker and riley yes on down once there is an agreement the school district certainly not a weasel out of it going back to the basic principals that this is child centered law if the school district agreed then that child's going to remain there until there is an agreement by the parties or an order otherwise and that's been very clear in this cour would just like to add just briefly the media breezeway some good points on behalf of the school boards and the charter schools we in this business work small bar and it and it is a game of gotcha in many ways and that we need a president that allows us to settle these things quickly and efficiently for the charter schools it's even an ex essential threat some of those schools are so small one big fear war could cause the school ask whatever you do the parties the parents schools and lawyers and particularly the children need to know what the rules are so we can implement agreements favorable to everyone concerned and let me just as well and i've already said i think one of the legal points should be for it to be justified it needs to be said can't be left guessing but the supreme court appears to be under would and this court in williams be as true has as addressed that phrase create it was under the equal access to justice act which is the same price and in ways we use true you laid out three points whether there's a reasonable basis in fact for the idea being proposed second whether there's a reasonable basis in law for the theory propounded and third whether there's a reason a connection between the two so i think here the one th no reasonable basis in fact because of what it said and then that the more difficult one would be pendency that's a matter of law in my mind it's included and unfortunately this ten day if you'll call it off or whatever it was the district letter from september eighteenth two thousand and fourteen became a point of gotcha against the parents on october first it merely after ten days these particular points we approached them about a draft settlement agreement that they had offered we had approached them about the original offer we had asked them whether or not it can scenes tenancy in its center fourth email and it sent a lengthy email each time back they came back to us and said no it friends school as being the plan and placement we went back and forth we even requests a conditional dismissal order to get the case this mess meaning when a see in order to provide the parties more time to negotiate this and every time we approached the to engage us so that's one thing i wanted to address and the other thing is that the complaint does ask for these things that