that two ok i'll try to help you ok and see it took care of this very large official aide that thank you for granting my use of this briefly or honors this court should reverse the lower court's dismissal of gallup mckinley's petition for attorney's fees and allow the petition to proceed on the merits the trial court erred in dismissing the case as untimely there are two ways in which the court erred first although the new mexico regulation setting the deadline for a party to seek peace is clear on its face the court magistrate judge moulton incorrectly added language to the regulation even after admitting in her written decision that the reading by the district the school district made sense she should not have done so unless the result of reading the language as is what have led to a bizarre or absurd result but daryn using the word bizarre after the th circuit precedent an absurd us after in accord with us supreme court precedent which i'll discuss in a couple minutes second magistrate judge molds and appears to have made that decision opinion unpublished opinion in which she analyzed the attorney's fees provision along with chief judge johnson prior to her having done so and determined that the right to twenty four b is relate is the last administration administrative decision relating to the prevailing party why isn't it why isn't out of a natural reading a natural  interpretation of the text well it i think it speaks to exactly what i was sort of starting to talk about whether the if the right to seek attorney's fees is independent what other let me just say other circuit courts have determined that chief judge johnson did as well that if the right to seek attorneys fees is independen then interpretation of that right would be rather expansively the deadlines would be read extensively so actually judge moulton in her opinion and this is on the at the record page one thousand she actually instructed on that point your honor that the phrase last administrati in isolation would seem to refer to the last administer to the last decision issued in the entire matter so she is she what would a prevailing party the when you say are you asking ok here well here's my hypothetical sure gallup gallup gets out on january st like it did here the last administrative decision of the of the case is a year later can gallop file its motion for tourney's fees in february of the next of the previous year right after can it file more or less immediately after it becomes a prevailing party  made in within the regulation itself at the the two your point your honor about the the craziness of having to wait a year and  that was actually judge moles and that was one of her concerns was that a actually it was specifically that a parent would have to wait a year but it's a legitimate concern the the  but under the administrative code the same section and it's i seven the public at department actually established a very short timeline for decision making so a decision a supposed to issue within forty five dollars days of a request for due process being filed so the timeline from start to finish is supposed to be forty five d on june th and the decision was the final order was issued on october th so there are four months there in that time there were multiple settlement facilitation to say all of the parties and it's actually quite it is not unusual for there to be more than one public agency involved in this administration of proceeding but if so in this case after the all of the parties in gauged in the initial settlement  new mexico school for the deaf and the parent they engaged in additional settlement discussions and then reached a settlement and that's why the case was delayed so to did not inform the parent of their right to appeal within thirty days and that is very that is typically what happens is once the hearing officer issues a decision that that whether it's wholesale for one party or the other which is fairly unusual but regardless the hearing officer instructs that any aggrieved party may file their appeal per a civil action in federal court within thirty days of or c of that decision that so in the record your honors the order granting summary judgment did not it did not instruct the parent that she had thirty days to appeal or alert her to the fact that she was an aggrieved party which is one of the concerns that judge chief judge johnson raised in the chavis case in terms of notice of the parents you know deadlines for the parent to follow so that is actually that was a point of confusion and i admitted this to the district court and i reiterated at this point that i did not realize that the parent was to have appealed under  grounds under chubb this for the judge to actually extend the time line for a petition for attorney c s so the that again as i started to say earlier the policy underlying the characterization of the right to petition attorney's fees is relevant to the extent that the circuit courts have interpreted the right it with those circuit courts and apparently the district courts following those that have determined that the right is independent the well independent the situation prior to the internet of the thirty day provision both sides in this case agree that the thirty day provision applies the independence or derivative nature of the see the right to seek attorney fees are you understood to be pertinent to whether or not you apply the four year residual clause or some other limitations period but the thirty day period is clearly enforceable it clearly is a political both sides agree i don't understand what the independent  characterization has to do with our issue i honestly was not terribly sure myself but the judge in the district court felt like it was part of her analysis and i as i was saying the district the circuit courts that seem to you know characterize the right as independent read deadlines expansively i think that's ok but i thought that she was just because it was addressing this only because you would  how the language was read and so i will if i may serve the last thirty seconds for rebuttal and just ask that the choir reverse the lower court's good morning your honor my name is maureen sanders and i represent the native american disability law center in this appeal and the center would request that this court affirm the decision of judge moles and that she issue which granted the center's motion to dismiss for the filing of the petition for attorney's fees as untimely and i think that the questions asked by the court illustrate the reasoning of the center for bringing this motion to dismiss it is clear that the the everybody agrees that thirty days is the appropriate time as judge baccarat mentioned and  that's important and i want to address the last question st if you will your honor i think it's silly or relevant to this matter as to whether or not it is an independent action or a  derivative action because as you suggested the previous cases relied on by at pellant go to whether or not and in that what analogous state statute would apply for a sets of limitations for a separate cause of action and that wasn't what was brought to judge molson because after the teco i'm not sure how to say that name actually actually the after the tikal decision by judge johnson d in fact changed its regulations so that it made it clear that initially it was one year and then became thirty days in two thousand and seven for the filing of a petition for attorney's fees and the reason that's important is that there are two parts to the statute that ms adams has provided to the court in the one part relates to an appeal from the actual substantive decision with respect to the requests for additional special it services usually and the nd relates to the attorney's fees and if you look at the attorney's fees section of a loan it only talks about the prevailing party whether that prevailing party is a parent or whether it is a public agency so section twenty five dollars that goes to who who can file yester on titian for fees right yes you're right and there's different standards as to when a public agency is intitled to tourney's fees and as to when a parent is intitled to turn his fees but the time limit is the same when the time says any action so that means for prevailing parent or prevailing public agency must be filed within thirty days of the receipt of the last administrative decision and so it's clear under the statute that thirty days is it what is the question before the court today and before judge previously is what triggers at thirty days and judge nelson didn't add language to the statute she engages in appropriate statutory construction pouri that that that is not something that judge most and added to the language i understand it she's saying that that is sort of implicit in the yes wouldn't that be now decision so if you if you don't and a propositional clause qualifying at the last administrative decision that means it's unqualified right and so the kid could have added that for and made it clear that that the last a bit a sort of decision is a save the equivalent of the final order and rule fifty for the federal rules says unqualified it's absolute it's what everybody would think of it's the last supper i can't talk for the p d new mexico p e d s to their thinking and as to their knowledge of grammar but what i can talk about is looking at this regulation the court needs to look at it in context and not as just a singular sentence or a singular phrase and in context this whole section twenty five dollars is about attorney's fees that can be petitioned for by a prevailing party whether it be a parent or a public agency and so the lower court decided that looking at it in context it made more sense to have it be the last administrative system decision related to the prevailing party order to seek attorney fees even if the prevailing party is retained prevailing party status but your lawyer i would agree with that to a certain extent your honor there is a inability for the district court to say i am granting the summary judgment to defendant number one but not defendant number two and se defendant number one there's no just reason for delay and so it's fine also do what you have to do with respect to any appeals and i would suggest that may apply also to a request for attorney's fees by defendant number one i think what if you pick up a twenty four though you know in that section the language within thirty days of receipt of thirty days to file the appeal from that decision and so i sort of mapped it out for myself this morning because i'm an old math teacher and i'm surprised i didn't draw diagrams but i didn't but let's take a couple of hypotheticals  is let's say we have a parent against to respond and respond at number one gets out early for summary judgment or whatever in that event then the parent if the parent wants to appeal that decision has to do it within thirty days and the the respondent that got out early must apply for attorney's fees within thirty days and then if the parent does not appeal decides i'm good with that  this what happened here then the defendant why i'm responding one must supply for still must apply for attorneys fees within thirty dollars days and so there's no conflict there and nd example is if the parent wins early against responded number one then responded number one under twenty four has appeal within thirty days and the parent has to apply for attorney's fees and then thirty days so everything comes up to the court if you will within thirty days if you have to respond it's and it all goes to a hearing nobody gets out early and plaintiff wins against one of them and loses against the other then within thirty days parent has to appeal the part she lost if she wants to defend the respondent who one has piper put prevailing party attorneys fees and parent has to apply for attorney's fees in the one that she won and so it's all compact act and it makes sense port all that happened within thirty days of the hearing officers decision do you do you agree that absent extensions or requests you know to go to mediation that the whole process takes forty five days that is what the rules require under the p e d s if i recall correctly your i'm just wondering you know it seems to me that if everybody was following the timelines and one party gets out early and within forty five days another party prevails then you have to fear applications up before the district court that don't really match as far as timing it seems like your position might not be the most efficient way to proceed i think the district courts at least in new mexico are used to dealing with competing petitions for fees i happen to know that personally  sometimes the timing might be a little different depending on when somebody's got out or when somebody filed those types of things there are motions to consolidate if it ends up with different judges you know those kinds of things can be addressed internally within the court but what  your what your suggestion somewhat overlooks is the effect on the parent and the lawyer of the parent in terms of thinking ok everything is done with respect to respond that number one now let's we lost we're good with that and well maybe not good that might be an overstatement but we accept that and now we're looking at respondent number two and so the approach to trying to settle with respondent number two may be negatively impacted if they are not sure as to whether or not the respondent number one is going to come after them for feet an appellant suggests well that doesn't have any effect on the settlement but i think that's incorrect i think that it can have an effect on the settlement i mean for example in this case the school for the deaf is the one who put the  was the local educational agency and i don't want to get into the merits here but you know if for example hypothetically the center realized that oh wait a minute gallup may come after the parent or us for fees then they might have thought indemnification as part of the settlement with the new mexico school for the deaf but you know that that that timing was all right we think everything is done because the medical school for the deaf i mean i'm sorry gallup mckinley had an obligation to petition for fees within thirty dollars days of becoming the prevailing party and it knows that it has it's not the existed at the time and they should have complied with it and complying with the thirty day requirement as interpreted by the lower court would be the better protection for the parents and children with respect to the petition contain both sections of the language from both sections but that's off the top of my head don't hold me to that because i was at the money exhibit yesterday so it was excellent by the way so for all these reasons your honour's i would respectfully request that the court give a commonsense interpretation to the last administrative decision language in the prevailing party petition for fee section of the regulation and affirm the district court thank you hypothetical about parents having to our parents or the native american disability lawsuit or having negotiated indemnity is not realistic they're a petitioner cannot get it's it will never happen that apparent is the prevailing party prior to the conclusion of a request for due process at the record district of new mexico twenty six dollars you'll see that the initiating pleading for the administrative action is called a request for due process hearing so if they defendant loses in the peer prevails unless you go to hearing everybody goes to hearing so the only party that will ever be prejudiced for by imposing an ultra short thirty day period to petition for fees is the very very rare defendant school district or prop public agency that ever would have a basis to even think about seeking fees this is the st time in almost twenty years that i've ever tried to seek fees on behalf of a public agency even though i've prevailed even in the circuit many times many times because it's a very limited there's a very limited opportunity