then in our view the issue of mutinous is a flexible doctrine and it is the supreme court said in the united states commission case yes judge fletcher in the in the lower court the lower court determined that because my client had settled the underlying due process hearing that that rendered moot the challenges that my client was bringing into the systematic policies and procedures of the special hearing office and we tried to argue in the lower court as as we are arguing also in state court as you saw by the request for a judicial notice that we filed that the special education hearing office has conducted these hearings in ways that are arguably unlawful and do not comply with state regulations the lower court believed that we did not have a private right of action that we needed to exhaust our administrative remedies by going through to a final decision under the idea in that specific due process hearing even though we argued that there was no exhaustion requirement because still subject to the policies and procedures of the contractor whichever entity that might be that has a contract or not in this situation in agreement with the california department of education the policies and procedures will be in place even after the contract with the ho apparently ends on december thirty first i think policies and procedures that you're complaining about well to begin with we do not know that special education here in office will not soon re enter out after december thirty first in two  argue that there are certain exceptions to the movement's doctrine that do apply here for example the capable of repetition of a general review exception is one in that the state of california awards these contracts for one year or two years or three years and so for example if my colleague mr klein has an objection to a policy or procedure with the office of administrative hearing which is under an interagency agreement today to conduct these hearing court analyzes whether these policies and procedures need to be lawfully adopted as regulations the question and the questions are unresolved i'm still having a hard time knowing there the same practices and procedures will be how well court and state court and so i mean is it is it is conjecture i knowledge that that the identical practices may be continuing we're here because we think that we should we should have our day in court in terms of being able to challenge systematically perceive due process infirmities and that's without reaching these issues through an exception to the movement's doctrine or alternatively deciding that the moodiness doctrine would allow a challenge to the underlying policies of the agency rather than a specific hearing in a specific due process originally is one thing the question of whether we can as you say conjecture that there's anything alive about your actual controversy over what procedures are being followed is another because we don't   cases never been against the special education here enough as it is against the the informal policies and procedures and therefore the concern continues regardless of as a contractor  this is not a situation where the special education hearing office even know they we've contested the last of the contract even though the department of education rescinded the contract with the office of administrative hearings and instead replaced it you were more focused on because the second just plainly quite contingent is that somehow these policies are traceable back to the governmental agency and the litany ultimately responsible governmental but i would argue that because our challenges to the systematic procedures and policies we would have a private right of action as we briefly discussed in our in  so you know finally that i believe that the exhaustion arguments are have been briefed and i have to answer any questions the private right of action issue was we were asked by the lower court to the night before the hearing to argue it but the lower court limited its decision to move i'd be happy to address either of these issues if the court you know would like to hear the district court and here as well that that we're just not the proper party were here today we're gone tomorrow there's there's just there's no evidence and it would be highly speculative to say that see who's going to jump back into the into the contractor that c d s even going to permit that so it appears to me at this point that declaratory relief would be declaring nothing and have no fact on any body cd in the state board of education and not hear and see who is no longer going to be doing any hearings and also i'm not sure that tsunami county office of education i it's really dependent upon cd has decided not to go out of contract which you know is arguably their right to do i guess they have been a whole lot of political things going on in the background the state attorneys have been suing for the job saying that under the state constitution you know the state department of education can't contract that out we've had two l county saying see has doing it all wrong my reading of thing been around an awful long time is that c d c is saying we don't want to do this and play this game anymore we're going to go in or agency agreement or get out of the court level that wasn't the that wasn't the basis upon which the district court determined them as i said all along they're complaining for example in the first amended complaint you know ten or twelve of the paragraphs say that these practices that we use you know for handling motion or you know determining whether we'll admit late evidence etc haven't been put in regulations state board of education develop regulations what we do have is an obligation under the contract to run a very very very big system over two thousand cases filed a year over four hundred you know go to hearing over two thousand orders interim interlocutory orders and rulings are are rendered here and we have an obligation to do which the school districts have a beef and again we have no ability to put those in regulations so yes answer your question shortly where the wrong party city state board of education are the ones  should be claiming to and by the way they did take by advice from the ninth circuit briefs that i wrote i want to state court and they're arguing now whether or not cd in the state board need to develop regulations  yes if i may take two minutes first of all the contract for see how i have been extended on various occasions and actually their current operation is an extension of their previous contract and so it's not unreasonable to assume that the contract may be extended or modified in some way there is no specific time or term on the directed to apply for this for the special education contract and so it was this is not something that we have any confidence would will exist months from raised a question about whether the california department of education was defending this case and i'd like to address that we went to federal court for a temporary restraining order because of the underlying  of the administrators hearing and we made the decision for eleventh amendment issues and related issues that we wanted to address specifically what the special education hearing office w doing and that that was a separate interesting from doing battle with the state of california in terms of regulations so as the sole contractor under the education code section fifty six five zero four point finally the county of san diego ninth circuit case i think recognizes that the idea a encompasses rights for all parties including the and we we were prepared to argue it in in the lower court because the death for new jersey case and the county of san diego nine circuit cases are really the only two cases that we've been able to identify