welcome to the ninth circuit if this is your first time here welcome if you're a frequent filer we're glad to have you ordinarily judge graber who is on that screen right there would be with us and presiding but she's in portland and the magic of video she's right here with us and i'm judge i assume i assume you can not hear me ok i hear you just fine and you look terrific and thank you and judge raver and i are delighted to have judge that aker from the fourth see the red light stop ok thanks for this case was filed by fight family special needs children who were assigned to a classroom that the school district conceded was an unhealthy environment for children experts  evaluate children determine that all of the children had suffered psychological and academic harm as a result of their exposure class the family filed an action asserting claimed families are not all in the same position another panel held there one family clearly had a non frivolous claim but it's am i correct that the rows and r i it is true that those two families did not file claims and our original filing in state court reflected the fact that that they did not have state claims period in the case only by virtue of an error when we consolidated the state and federal claims it's true that they did not have a basis to assert the state awarded fees for work that was performed in opposition to the a da and rehabilitation act right i'll be asking a proceeding council about that that that that that is more about amount than it is about and title month is that correct i think that that in addition to the fox versus vice and the  the defendant's burden to establish that the fees that they are seeking are over and above what they would have excess performed for federal claim right but that's that is not a matter of it seems to me determining  different if you but i would concede that there was not a basis to pursue those claims that's correct ok thank you raper was not properly handled by the district court in that that of fees were awarded for work that was clearly would have been performed anyway had there bendel state law cl by state law as as as this court has previously held there were circumstances because the defendants made no attempt to as stablished that the fees they were seeking were fees over and above what would have been very to oppose the federal law the motion should be should have been denied in its entirety and this court should reverse if this court determines that this should be remanded then the court should direct the district court to make a proper determination as to the reasonableness issue as to the families who did  but for the existence of the state i don't have any other which thinker i'm just i've come here we've got four minutes to respond to what your opponents can say right now ok thank you very much i think you counsel reversed the summary judgment graham so that has to go back well i would say it's the district position that the fees asked to him g s family have to be vacated the district to district agrees with that california law the california supreme court has made clear that when you  work on claims for parties such as mc where you didn't necessarily prevail or on issues that you didn't necessarily prevail if that work was common to the work that you are entitled to fees it doesn't affect it doesn't have to affect the award but as we said that's where my was no attempt to reduce those entries and the court didn't take that into account at all so why isn't the bulk of this a problem because it's related to the federal crimes your honor i take your question as going to preemption and i would say yes yes and i would say that preemption doesn't apply if you just conduct the the analysis articulated by this court preemption can be expressed or implied expressed preemption clearly doesn't apply in this case to the sub categories of implied pretty one being called flicked one being obstacle conflict only applies where allow feel wards for for non frivolous claims and you did get a mixed and you well i would say no we didn't your honor and the reason why i say that is because we made clear to the district where we were  not speaking fees for the federal claims i was the attorney that went through the billing records there's more than eighty pages of billing records in the record i struck through the work that was done on the federal claims and then for the since you're the one that  found regard to preemption why don't we have to send this back anyway because the district court seems to have misunderstood factually what you were doing by saying that the work for which fees were being awarded was entirely related to the state law claiming that's just not the case and there are some instances in these billing records where there was no reduction in time for work on the summary judgment motion and the deposition time was awarded in fall so regardless of preemption why aren't why aren't there factual problems with what the district court did  the issue finally reached the court for on the issue of fees and we struck where it wasn't clear where the work was common to the to the boat to all claims we struck half of the time on those when you didn't in all cases that's my point i'm looking pages nine seventy nine to eighty there's no reduction for time spent working on the summary judgment motion for march eighth march fourth twenty sixteen and there are other examples than there where it isn't what more of the court seemed to think it was and so i guess without thinking even about legal issues it seems to me that there problematic aspects to the district court right will i and i will say your honor with i don't have the billing records in front of me here but some of the summary judge the summary judgment work that would have been sought in full would have been related to  y and it would have been related solely to the state law claims because there was supplemental briefing a lot of supplemental briefing filed after the initial summary judgment brief in the fees on the house to m g would have to be a little bit i think believe they say it much more eloquently than i'm doing here today but the fact of the matter is when you're dealing with obstacle preemption it is the burden of proof on the part of certain implementation to show why should we care how they analyze this question your honor i would say it's the most it's the most recent most person sway seven well reasoned decision on this issue well it's not it's not  address reasonable cause reasonable cause is not on the table in this case we pointed out in our answer brief that the district court made an expressed finding that time claims were not brought in good faith it's outlined in our  answer brief the host of actions that were taken in this case that show that plaintiffs and their attorneys did not act in good faith there was repeated misrepresentation after misrepresentation about when these pla this case for more than two years wasn't just a mistake it was knowingly false not your position it's our position it was knowingly false your honor him without if there's no further questions i'm about out of time ghraib or anything more no further question facts we were clear with the defendants that no claims have been filed i want to go back to the janky decision which counsel says is the most recent authority on this issue and that's just not correct the ninth separate out the work on the state versus the federal law issues that you divide it in half that's that's exactly the wrong if you can't determine if you can't distinguish between the federal and i mean we're going to frivol work on the frivolous claims versus the non frivolous claim you're not entitled to fees at all and that was the ploy of the fox out there was another there's another question that the district court never made a finding specifically on whether even if  some fees could be awarded in that situation that half made any sense if there was a good claim and a frivolous claim it's not entirely clear to me that at least without a factual finding that half the time ought to be spent on something that is obviously for him was rather then you know five percent of the time that's right what am i right that there's no factual finding by the district court on whether that hair made any