parent who's arguing on behalf of their disabled child so that initially upon the filing of an administrative due process complaint with the local educational agency there's a there's a stay put there's a hold so ever the student is receiving their educational program that student must remain in that educational placement before may not be explicit it certainly had the effect of denying a preliminary injunction and it's our position that you have her file a motion for planning or injunction all i saw was that order to show cause which seemed more like a ruling on  request for expedited scheduling well it was night but it was not limited for an expedited scheduling it was to understand the language that you quoted but in terms of the actual motion it was the order show cause had to do with this what we we had hoped to get to to be heard by the lower court in on it in an expedited fashion however that never occurred as as the parents argued after the filing of show cause which was so and the judge the judge refused us on three separate occasions to to have any kind of a whirl argument you know on on that i guess my concern is you know you chose to proceed by order to show cause presumably to get expedited hearing on on what you wanted and that's an airlock atory decision technical stuff around here on why i was i was so i respect technical arguments too but but the language i believe says otherwise the language i quote from the appendix from judge ballots is order dated april th that quote having failed to demonstrate the right to either a temporary restraining order were preliminary injunction the court here by vacates the order to show cause filing a complaint within the complaint that we filed also in order to show cause seeking to expedite the case this is a case involving a young child who severely disabled who doesn't have an educational pendency placement we sought to get before the court in an expeditious manner and han it's unmasking about the word that you just read and how that falls within twelve minute today one is and as well again it says quote having failed to demonstrate the right to either the t order she didn't say that but she said again you would feel to demonstrate the right to a preliminary injunction and based on that that falls within one of the exceptions where the parents placed her unilaterally in both the prior school and the nd school they got paid for the prior school they were paid for the four of the i hope placement on the basis that the department of education  the law or the case of if you will now the question the legal question is whether this nd placement is substantially similar for us and who is going to make that decision what's the status of that case well after being denied the opportunity to try to present our case to the to the district court we went back to the administrative proceeding in this in a ministry of hearing officer called an impartial hearing officer essentially before that impartial hearing officer i believe it was sometime in may or june it was after these papers were filed the impartial hearing officer was apprised of pending federal might somehow have an adverse effect on the federal litigation we're holding everything up by taking this case or considering it the other case doesn't move forward till we reach a decision well not not not really no your honor he the impartial hearing officer asked us to seek permission from the lower court directing him to move forward with the ca judge bats by my decision i believe it was july twenty two to klein to do so or her her opinion was that she lacked the authority to direct the impartial hearing officer to move forward ok so once we reach a decision which ever way it goes is that sort of proceeding still alive recently after without prejudice but stating that he was on constable he felt he didn't have the jurisdiction to move forward pending federal district court litigation as well as the appeal before before your honor's you believe you still have a case right i believe we still have a case because pendency is different then something called faith of free and appropriate public education there are different standards there's different evidentiary issues pendency is really just kind of a stop you know while it's different than say a bankruptcy automatic stay it's similar in that it's an automatic stay you don't have to show the typical elements of a what's necessary for a policeman every injunction irreparable harm likelihood of success the merits there's multiple nd circuit decisions that say no this isn't a pendency is an exception to those rules that in fact the congress has taken away judicial discretion from that decision and  requires an and has imposed this automatic stay while the substance of the case proceeds right you have two minutes for about all we're going to hear from the state and  to say that there is going to be no litigation over a child's interim placement with the parents are offering is they want to replace that clarity which this court has defined as what both parties had agreed to with a recipe for ongoing controversy i want to say that parents can attempt to relocate their child from school to school and start expedited satellite litigation over one school or whether one school is substantially similar to another that's not the point of pendency well that you are now talking about the case that was dismissed that was dismissed no your honor the case that dismissed by the way both sides are appealing because i think the ice show officer in that case finally misunderstood the difference that tendency is that issue or what plaintiffs what opponents claim is pena sees that issue in this case and the underlying administrative dispute is about whether the deal you feel to provide the free and appropriate education so both sides are appealing that we think the answer a will readily reverse that and send it probably to a different office or to say while pendency is being litigated in the federal courts you should continue to decide whether or not this child has faith and that's the reason why pensees about pro it provides repos it says keep the child at the last agreed upon placement so the parties can litigate the true dispute whether or not faith was denied and in doing so pendency keeps that child at a stable environment  and i think the states in this case because the parents have sued and i believe the state's going to argue why the state's not a proper party and leave that to my colleague to make that argument you don't deny that the city is approp when the city is a party because the deal is obligated under the id to provide faith and in this case the what the parents are saying is that tendency basically becomes a sword for them but that's not the point pensees a shield says keep the child the parties last agreed upon and i think what this court did in t m doesn't make a difference if the new placement is substantially similar to the place that they agreed on before is and that the merits of this or commit that we may or may not reach this court this court has never held that substantial similarity is somehow a path for parents to move a kid from school to school the argument they make that is the argument and it's wrong that's wrong because if you look at t m which they don't even address in their reply brief in t m you had a school district cornwall school district who had agreed to provide certain services as pendency then one year they decided not to provide that so the parents went out found their own private providers for those services saying while we l gate faith we are entitled to the services then this case came to this core and the parent said because we've placed this kid with private providers we are entitled to keep that kid there and this court said no that's not what pendency is pansy  you agreed to services but the school district in the st instance gets to decide based on what was before it where that kid should be brought so under they're under their argument t m should come the other way and it did in this court squarely said just because you put your kid with private providers and in fact in t m they're offering the exact same services and this court sit still said no that is not pendency because you unilaterally place the child there as the pa attorneys are you can see right here he acknowledges that the unilaterally placed the parents child in that school that's not pencey that's a unilateral placement and there's a mechanism under the recognize that this case does present a unique procedural prosser given the fact that it was of a key from the order to show cause and at some point candidly the city also considered whether to raise the jurisdictional argument but ultimately we think the better answer is that there is  certainly did not move to be you know continue to pursue the order to show cause path there is no indication that the district court truly that was their concern that the parents should have moved proceeded by a motion as opposed to in order to show  cause and so that's why this order is much more in line with an order that effectively denies them pulmonary injunctive relief and one final point on the jurisdiction there was a case cited in the state's brief the food into a case we think that's distinguishable frankly because in that case that was a situation where the parents wanted to leapfrog the process and have this court handled the underlying fate dispute and they had actually never specifically asked for pulling their injunctive relief which the parents here did we maintain even though there is jurisdiction obviously the parents still don't have a pente right because as they begin knowledge they made a unilateral choice to move their child to a different school it doesn't matter if it's substantially similar has a structure to litigate situations where parents make that you know a lot or move and that's the burlington carter test and so as this court did in t m even though the private providers provided the exact same services they said that the parents could not keep their child at that you know allow or placement thank you thank you will hear from the state good morning in may it please the court clerk greenwald on behalf of the state education department the studio agency appears here to address two threshold issues one that this court does not have jurisdiction to review the interlocutory order vacating an expedited hearing and two that the state agency is not a proper party to this appeal to briefly covered the nd issue it is undisputed that the city and not the state agency is responsible for any pendency funding here that is the only claim for relief that the appellant's request from this court and the state agency is not responsible for providing any other form or belief in addition it is clear both from the appellant opening brief their reply brief and their argument here that they have no arguments directed to the state agency on appeal turning to the question of jurisdiction it is well settled that there is no  form or in substance for at least six reasons st the only action taken by the district court here was to vacate assigned order to show cause setting an expedited hearing date that is a classic type of procedural case management order that like to point out that just before that the district court said i am doing precisely the same thing here as i did before which is simply denying the expedited hearing date because this was ordered to show cause was signed by a substitute judge when the assigned judge was unavailable but to answer your question directly the district court order actually makes the most sense as a procedural decision that the appellant's fail to demonstrate a right to  with the local rules in order to proceed by the un usual expedited order to show cause process as they did not dispute in their reply brief given that they did not submit an attorney affirmation that sets forth sufficient and clear reasons for why the order to show cause signed by the substitute judge which indicates that appellant's had the opportunity to proceed by notice of motion and it is notable that the district court order here did not preclude any opportunity to proceed by notice  motion finally i'd also just like to point out that if you look at the district court order it looks like a summary procedural order it does not contain a findings of fact and conclusions of law which are required under the federal rules of civil procedure to deny a preliminary injunction the but st there appears to be some agreement with with with counsel for the city that this court has jurisdiction and i would ask that this court find that it does have in fact jurisdiction to hear this matter but after that there normal course and that's what prompted this appeal quite honestly we received that order and scratch our heads what was the reason why since there had been no evidentiary hearing there was no oral possibility however by way of an order to show cause it was the appellant's position that obtaining pendency is more is more of an immediate concern this is something that we didn't want to go through a of the factors that has to be considered is the emergency type nature of the proceeding agreed and we thought that we did out most expeditiously by way of an order to show cause however that's that that's not the way the t the quick the lower court are quite treated it but with risp with respect to what the court was going to do we subsequently sought permission from the court to to have a summary judgment leave for summary judgment that was denied by the court so we're not sure what's happening where you know there's there's a disabled girl out there who's in a vacuum there's no administrator proceeding movement there's is with this court that that was his thinking and i can't speak on his behalf but answer as counsel for the city noted both sides have appealed his dismissal to something called the state review office which is the are and as long as the student remains in the same general type of services the same kind of educational program that's permitted that does not violate pendency would does violate pendency maybe going from a private to a public school or vice versa or going from a our calendar so i will ask the clerk to adjourn court