uniquely implicates the balance of power between congress and the district a relationship of constitutional dimension and that in this case sits at the intersection of two congressional enactment is the home will act in the school reform act the simple the simplest passenger station however express preemption an obstacle preemption theories and this is set for that day thirty six to thirty eight the district court dismiss count two but there is no suggestion that count two was so frivolous such that under seal co and supreme court precedent it highlights i think there are a lot of unresolved questions when you go under the old issues in answering that question in no way this court said for example it can't be that a district only congressional law is actually a local law for preemption purposes otherwise you could have a scenario in which congress pursuant to its article one of the already in actual law at time two that's been preempted by something congress has done previously at time one in the exercise of it's non  and that would create confounding problems and i think we'd submit that this works precedent and really the precedent across the country haven't answered the question of whether despite the fact that congress for section thirteen sixty six purposes has ranked district only congressional law is not federal law for purposes of section thirteen thirty one nevertheless whether for constitutional purposes a district olney congressional law is superior to district law  which arose under the district clause because as you will as you may recall the district court ultimately dismissed count two but explained that the same preemption might principles that is attempting to ascertain what is the relationship between a congressional district building law and it conflicting organs of the district government that is section twenty four one imposes direct mandatory obligations with respect to how the decks with respect to how the districts organs of government are supposed to exercise their government already with respect to public school funding and again we think it was a non frivolous argument to say when the district takes actions that are expressly or impliedly inconsistent that began under express preemption theories or conflict preemption theories that that raises a federal question that's sufficien give rise to a federal question we've got we know that the school the provisions of the school reform act that you're relying on there because the the way argument the sequence as i understand it is there are provisions of this of course that the school reform act that are problematic for clause precedent to determinism and then another standard for example that why it wouldn't mean that in any case where you have a statute that would be treated as local in character for thirty sixty six plus the people one purposes you wouldn't just a supremacy clause overlay them and give rise to federal question that would give rise to federal question interesting well i think i think in the hypothetical i think i think the statute which unique about this statute which is what i said it wouldn't be the case in any sort of hypothetical prevented the council from an acting and a rule that was with respect to the jurisdiction of the district of columbia courts so that was a limitation of the council and what we said was this subchapter the provisions governing federal jurisdiction that a wall that congress enacts only for the district shall not give rise to federal question jurisdiction however in this report noted this same distinction  deciding to question the preemption context that does not necessarily answer the question whether from a constitutional standpoint again whether you're thinking of the question under the supremacy clause those are under the district was that one that became rationally an active law that's an interesting it's an interesting question i would i think the answer your honor's probably that congress doesn't get to define the constitutional status for constitutional purposes and the reason is that i think i would otherwise create problems as to whether one section eight of the worry over the district it may be in some sense acting as a quote unquote local legislature but it is still congress acting with the national legislature and that part of the reason the framers invested congress with control constitutional trouble whether congress could write a statute that says if you want to bring a supremacy clause challenge to a local district law you can do so in federal court i think congress probably could do that but i've submitted a plain text of thirteen sixty six doesn't do that  medicaid act the court i think all nine justices agreed that we should abandon talking about whether there is such a thing as an implied right of action in the supremacy clause but all nine justices also agree that there is a long tradition of federal courts exercising equitable already to enjoin unconstitutional state action whether by federal state local government officials and not equitable federal equitable power is essentially what a  itself created a private right of action that was in forcible to you some sure it was that the federal courts had inherent equitable authority and i think scholars after armstrong have spoken essentially a recognition that there is essentially a cause of action that arises and are federal equitable that under the district clause the question was congress has the right to pass a superior affectively preempting an accident even if it is directed only at the district that flows  authority to congress in article one and that as a constitutional matter again whether you're under whether you're thinking of this question under the supremacy clause or the district clause that statute that congress has an active that it intended to be superior serves the same role as a preempting statute in armstrong that is before and after armstrong and preemption cases courts didn't look to whether the statute that was doing a preemptive work the federal statute created a cause it seems odd that congress would have wanted to keep the case cases under the school reform act out of federal court let's just assume that i mean i think and i don't really think you dispute that actually that the school reform act of its own course doesn't give rise to federal jurisdiction it has to be some overlay that comes from the constitution that goes yet they were incapable of doing that because there's always apparently a non frivolous supremacy slash just because overlay that could have been tacked on to any one of those cases and then they would always get to federal court and then did the score for my case just comes clean just comes the standard is where there is conflicting precedent a federal court has to have jurisdiction to be able to cite the merits even if it's say the claim fails and so some point that question a result but second i submit your honor that particularly with respect to a jurisdictional sachi like thirteen sixty six congress wanted to write that provision to apply to any claim in which a court in the process of adjudicating of a constitutional claim that arises under federal law that congress wanted to say we want those in superior court as well congress to do that thirteen sixty six is written doesn't do that it only says that claims that arise under a local inactive congressional law and i think applying straightforward preemption or district principles those claims ar constitution and thirteen sixty six simply doesn't speak to claims arising under the constitution and i understand that in the course of educating that constitutional claim a court will pass on necessarily the meaning of the school reform after the home lack that's also true in preemption cases that's also true amounts of other contacts so i guess the but the bottom line is have congress wanted to write a provision that not only sent all claims arising under directly different for this purpose is there some argument that the district was created substantive rights against doing to do that do they track one from one or would you have an argument that armstrong doesn't apply if you think this is really a district issue who wins a tug of war between the council but i think you're right do you think this is slightly different in the district court obviously assigning significan difference in the fact is that i think we would see this in the opening of both my opening here and the supplemental brief which is that the article one section eight provision regulating the relationship between congress and the district really is a unique constitutional provision that recognizes a very unique and silly generous constitutional status between congress and the district and the idea that congress just is a plain interpretive matter the idea that congress through thirteen sixty six  channel all that occasion challenging district action which is really a direct affront to an exercise of congressional authority on the under the district clause to secure or i'd submit just doesn't make good sense of what congress is trying to accomplish in thirteen sixty six and there's no clear evidence that that would be the case so short the answer to your question your honor is that under the district clause given the unique relationship recognized in given that this case under our theory again is that congress was exercising its constitutional authority it wanted to do so in a comprehensive and mandatory exclusive manner to address a problem that the local district government has been unable to fix that is educating the districts you that the idea that thirteen sixty six plainly in red means that that type of suit has to be brought in superior court isn't a fair reading of the text of thirteen sixty six given that that claim arises under the constitution and arises  believe that's i believe that's certainly a possible claim i'm aware that there has been constitutional litigation across the country with respect to charter school funding i am not aware of the outcome of all of those cases i think one of the things that makes crisis in public education for many of the for many of the districts you took upon itself to create public charter schools as a new model of education in the district and imposed a statutory requirement that funding be provided on  uniform per student basis to charter internet will schools like and that funding requirement i think is clear from the text the structure of the tax structure purposes and legislative history of this statute was designed to serve a really important purposes  to ensure that charter schools would have a chance to succeed to implement basic notions of fairness and equity for the district students you know at the time this complaint was filed public charter school students were thirty seven thousand students in the district now i understand that number's up to north of forty three thousand essentially one out of every two district students attends a public charter school and the claims that we're presenting here are that the district expressed me and quietly has taken actions that directly conflict with that uniform funding mandate and i see question just about how the american arguments fit together so there's there's an argument the district didn't resolve which is whether the home rule out properly construed well  because it's a law that deals specifically with d c then is that a viable fat path to reaching a resolution and just not engaging on any of the questions of whether the path that d c has chosen in fact that there was something functionally equivalent to that without the explicit provision that they applied to do the same thing i mean i guess i'm asking or even more basic question suppose i disagree with you on that just assume i disagree with you on that then if i conclude that that meant a repeal authority that's designated in the home rule act applies to the school reform act then is there anything that prevents me from saying well even if the district didn't think it was amending or repealing the school reform act would have the authorit or repeal the school reform act under the home rule act and that's an easier way to reach a resolution without having to decide whether the district in fact conflicted with the school reform act and promulgating the reform act but the fact that the district would have the authority to do that by hypothesis would be enough to allow resolving a case on that basis i believe so your other and i think of course i took to district but this is a case where there is really a very expressed a valid purpose of being able to amend repeal acts of this who are format that this really hasn't given the fact that you just look at the d c code in how it is implemented th one of the reasons to again jump back to the jurisdictional point that we think this is really the type of dispute that sense of legal longs enough in a federal forum which is understanding as between a congressional and active law and conflicting and then purportedly amending district windfall results that the district accuses our reading of producing prince we because in many of the circumstances the emergency or exigency circumstances that the district identifies those costs or expenses would not be an operating expense they would be a capital level expense or they would be what i understand in accounting and budgeting terms as an operating expense which is a non routine non expected surely emergency cost and i think that question really speaks to a fundamental problem here which is that the district hasn't really taken seriously its obligation to to have one uniform moving through the unit right i mean i'm clear here on what this line is short all right burn down school that doesn't that doesn't reasons the first is that the district we need to have come up with a definition of what an operating expenses in there would be a question as to whether we go as a summary judgment in this case i'm trying to figure out your theory of getting a summary judgment on the supplemental payments so i don't know how it can be unclear you must have a theory  think it is because trina students are moving in from outside the district that is not talking about in trouble district mobility given the nature of the per student funding formula which is that money should follow the student and it should follow students on a per student basis if maybe a year there is a sudden influx into either sector of system because of an unexpected event and assuming those are operating expenses because the district doesn't decide actually this is just more like an emergency exit you know you december so we're going to need two thirds of the year's payment to educate them so they give about two thirds of the annual payment times that now isn't to the d c s holes because they're the ones going to educate these kids for the balance that's correct and in that this is an important point your honor because there is there are mechanisms that the district does follow to make made your adjustments based on the ability changes to public charter schools that it doesn't that it doesn't currently make for district public school students but there's nothing again i think interpretation of the school format that would preclude the district from being able to make those meet your mobility adjustment so long as they followed her rated version per student formula that the school reform back  acquires but i do i don't want to miss the point though to say and i understand that we have an obligation to come up with a definition but i think a big part of the problem of what's been going on here with respect to this funding is that the district has never really sat down and come up with a a study by independent consultants that was asked for by the deputy mayor of education in response to criticism that there have been funding this is a fifteen month study and what the study found is that the district really has no c judgment and i thought you were making any argument i mean the meaning of the statute here is that you have an understanding of what operating expenses are and they include supplemental payments or some supplemental payments and not yes absolutely and it's certainly relevant and i think it's relevant with respect to supplemental appropriations but it's more relevant with respect to teacher retirement payments of the syllabus related payments the district is taking a quite across the board categorical position that those costs are operating expenses and somebody is an operating expense versus when something is an operating expense may well involve some tough judgment calls here those judgment calls don't get to make are really necessary to resolution of this case because the district has taken an across the board position that teacher facility excuse me that teacher retirement payments don't count and that facilities related costs don't count despite the fact that those fit with any commonly accepted definition of operating expenses if the court would rule in our favor and say oh you're all operating expenses for public school students in the district need to be funded according to the uniform formula as it happens that no one operating expenses means but we there is a definition we think there is an accept definition of what an operating expense means how that definition applies you got is i'm sure you may be aware from sitting on to me for cases how that definition applies in particular case that any particular line item or expense may involve a matter of judgment but i'm saying that case to that issue isn't presented here your honor because you have a circumstance where the district hasn't come up with those hasn't attempted to come up with a definition and has instead taken a rather cross the border categorical position that things that fall within the clue are of the definition that is essentially payments for current teacher salary packages that is the pension piece and payments for routine repair or nonstructural maintenance of schools are not operating expenses when we think under any accepted definition of operating expenses are going to we're suing over was supplemental payments and now you keep leaving that out because we've discussed how complicated that isn't easy answer here that nobody should get summary judgment  we we would like a declaration by this or that facilities related expenses and teacher retirement payments are operating expenses subject to the formula and we i think laid out the reasons why that's the case in arriving here i was just going to if the only question is supplemental appropriations the one supplemental specific example of the supplemental appropriation that's in the record is a fiscal year two thousand and twelve supplemental appropriation that the district made for twenty five million dollars that was made for according to the district for a variety of expenses arising from budget shortfalls in funding shortfalls in the district schools we have set as we set forth in our statement of undisputed facts in the district hasn't disputed those are routine day to day operating expenses in the district vigorously defends its right to be able to make those made year supplemental operating expense payments on a disparate basis and we think that's contrary to the tax structure and purposes of the act so with respect to the wants to fund that meet year it needs to do that consistent with the terms of the uniform funny man tha what do you need to get your relief and as a result when you go into that in into court you look at first if you if there is one existing a cause of action you look at the cause of action that there is a federal question it's involved with the courts have said is you don't go and look and under the school reform act that's a local law it's a local law not just for jurisdictional purposes but even for any subs and it's clear from the jurisdictional statute that congress acted back in one nine hundred seventy that the school reform act is local what it is is one that was passed exclusively for the district there's no dispute about that and as a result you can't come into federal court saying that there's been a violation of the school reform act because you're saying that there's a violation of local while you have to go to the d c superior court so they're not relying on the slow format and maybe there's a district that you don't know about that is the source of their cause of action and force the school reform act will again are our belief is that one would need a private right of action for damages services one could get equitable basis for going into court and saying it's been violated so as we read the complaint with the order schools are claiming is that there's a cause of action under the school form and it's being violated is that local is that the way the law works in the district that there more through the facts which are arguing the case so what if they show what if what if the ultimate merits were that it is or didn't violate the school format is there supremacy clause issue there is not is there an article one section eight issue with the ditcher clause there's not what they're seeking here is really from the school reform act they don't have any alternative grounds of relief under the supremacy clause it's all premised on a violation of the school reform which is a local war what they're doing is exactly what the supreme because i get your point that they only make out a violation a claim i guess they call it a violation of the terms the clause if there's a conflict with the school reform act i think i understand that because the complaint is actually trained that way but the reason there's a privacy clause problem is because the district has acting acted inconsistently with the school reform act so that part of it i understand i guess i'm not completely understanding why that means that the supremacy clause only comes up by way of defense it's on the face of the complaint it's just that you have to go to the school reform act first i get that but that seems different from saying that therefore it's only coming up by way of the defense well i apologise it's not the defendant raising a federal issue can do so under the home rule and as a result you can't get any relief and so then the charter schools and dissipating that that would be the defense raising their complaint proactively to say oh well if you do go against th district clause in the home rule out that's right it didn't seem like the way count two is framed which is a violation of the supremacy clause and you're saying it necessarily has to be the way to read that yes because you have to look at what they're seeking what they're seeking fundamentally is relief because  in violation of the school form and the only reason the supremacy clause of the home relax is even discussed is because the district is saying that if in fact we did my own we have the authority to do so but in the book leading complaint we don't do that you don't think i mean i'm still stuck in the same place which is it seems like it's a different argument to say there's a well he did complain problem on one hand and to say on the other hand you have to resolve the school reform ac but in order to resolve the constitutional claim as i understand your argument you're treating them as one in the same it sounds like you're saying because you need to show because the plaintiff theory requires showing a violation of school reform therefore the supremacy clause claim can't be a well they did claim and that i don't understand because i thought that well pleaded claim complaint rule was about what's on the face of the complaint and doesn't right i think we're having a bit of a logger heads is to say we believe the wealthy to complain will suggest or indicate it's what you need to get your relief if you get your relief by saying there's been a violation of the war you don't even if those federal issues may arise or the state court deals with it so in our belief there was a federal cause of action that just says in if there is a violation of the school reform act there's also a violation of federal law that's the statute right statute that just says if there's a violation of school reform act it's also a violation of federal law and then somebody brings a claim is that as i'm bringing a claim for violation of the federal law that makes the violation of school reform act of violation of federal law i don't think the answer would be you i think on its face you know because we already know for both for sexual purposes and for subs it was a congressionally an act of law for the district is local law and as a result the supremacy clause which doesn't provide you any rights anyway doesn't even put a real decision because we're not dealing with federal law versus local however one would say maybe that as the district court did that the district court has maybe implicated in some fashion because obviously that's dealing with a specific situation of congress and acting law for the district so you have to criticize friends because even if they put it in their county because it's not part of their claim if what they have to prove is the authority to the district to do it at best or in the district was now does that make it a constitutional claim is the whole federal question issue resolved now because the district was is merely a board grant to the congress to act exclusively for the district if the district had not acted the rule and then maybe we're on the something then maybe we're at the district was we have to look it's whether another as it was stated in the market is state law as a result you're still not individual court even if you have to show that authority the district of columbia we're dealing with here is as you can see where the pleadings went in the motion to dismiss stage everything was be state law issues because they're dealing with what the district can and cannot do as a result we don't think you're in federal court even if you buy the argument from the charter schools that they need to get into the issue of the district o one counts two of the complaint clearly rise in the constitution and i think armstrong your honor does make clear that we do have a cause of action and that we have to bring those claims under the constitution so if you start from the assumption that we do have claims that arise under the constitution and much you conclude that they are so frivolous that they never open the door to federal court so to speak then there is a basis for federal jurisdiction and we would submit that all those claims not only are not frivolous but for reasons that judg articulated either the district clause or this is a privacy clause and perhaps the most natural home is the district clause has to rank congressional authority over the district it's a theory or as a constitutional matter over conflicting district legislation that is a constitutional question that's directly implicated in the case here second there's nothing to satori at all about count two i think for reasons that some of the questions i got from the panel got to we also think that that's true of count one but there  nothing in camp two that predicts the district will come back and say well we have home rule act repealed amend already instead count two invokes express preemption an obstacle preemption theories and says what the district has done here is contrary to and conflicts with the supremacy clause so that theory of anticipation can deal with count to third and i don't think my friend from the district mentioned this provision but again thirteen sixty six on terms does not apply to claims that arise in the constitution so if you accept step one of our argument that we do have claims that arise under the constitution there's nothing in thirteen sixty six that suggests congress intended to shunt those claims to security report which after all or three protections of be a pretty significant decision to decide that congress it's all constitutional claims involving congress's own equities to superior court to be result particularly on issues such as important as this finally with respect to the home rule that provisions we do think that the provisions at issue here are authority allocating provisions section six of one section seven seventeen defined the relationship between congress and the district and under this court's precedents t h r a sufficient to give rise to federal jurisdiction so we think for all of those reasons first action is present here and we think that on the merits for the reasons set forth in our brief the district has for years now been engaging in consistent unequal funding practices that are directly in defiance of the rational commands in the school reform act we think federal courts are the proper forum to hear that case and we think that on the merits the district has violated the school reform act and that we're entitled to equitable and injun e relief making clear that the district is down to and ought to be following the uniform funding mandate which covers an active telling what your lies are positive that are taking your claim in the equitable unquote cause of action lies and will i won't repeat that discussion we also the complaint also invoke the home rule lax section six zero one as a source of authority to sue that's set forth in the jurisdictional section of our complaint this court in shock when it was conf the question of whether the board the balance of power between the board of education and the control board cited section six or one is a source of congress's reserve who are again the district is never the same thing as a closet i know that's pressure on my point was that it in the district has never taken the position that there is no cause of action under the home rule act so because of actions arise under the constitution cause of action rising to the home will act in the district again has never raised an objection to the existence of any of those cause of actions which are all sufficient each of the jurisdictional bases we set forth in our supplemental grief are sufficient to get in the door to federal court and particularly with respect to supplemental jurisdiction as we mentioned in our brief there is a discretionary component to that and we think that discretionary component has long since been waived given that the district has chosen to not raise the question of objection to a federal form until more than four and a half years into the litigation on the eve of war argument we think that for that reason this war could comfortably say that any objection to a district courts exercise a discretionary supplemental jurisdiction again once you think we had a non frivolous federal claim to get us into federal court has long since been forfeited by the district and for that reason section thirteen sixty seven