division of time of the apple ease with respect to the presentation of their argument i've found it very curious as to the order of battle that was pursued here in the briefing i think you know i understand from the standpoint of point of side why that would be the case  i'm a bit confused i think we're getting some some feedback all right let's try again i remarked before the electronics here so rudely interrupted me that there is something of an oddity i think in the way the case has been presented actually not only to us but the way in which was ordered in the district court we go into the substantive issues what i'm referring to is that ordinarily and perhaps not always but we're nearly where one has a complaint filed in a punitive class action and at the same time a motion for summary judgment battle would be and certainly the defense would want it this way that st the court deal with a dispositive motion now i recognize that there was st of all a motion to dismiss here that was denied in the case proceeded but i find it very curious that what went forward and what the district court addressed st and what both sides here have argued in their briefs at length is the period procedural matter of certification and i'm going to ask both sides if they can help me to understand what went on in the district court i know there were a number of scheduled conferences perhaps settlement conferences  was the motion for certification pursued and ruled upon prior to the motion for summary judgment which had been ruled on st as it was ruled upon here eventually would have rendered going through the certification process completely unnecessary a senator on can you help me on well i can try your honor position you want a class action you know but in the previous oral argument here we had the metaphor invoked in another case about a tail wagging the dog and statute and regulations that have been promulgated pursuant to that statute i simply don't understand why there would not have been an effort from the defense so maybe it up to the defen under rule twenty three to proceed with right well your honor i think i think that there is a relationship between the two motions on that state's not a question and that relationship or something going hand in hand this in my view it has been in aptly stated elsewhere including by the district court a different matters if there is no substantive legal claim upon which team are as an individual plaintiff and a class representative if there's no cause of action upon which to proceed then judgment is entered against the plaintiffs things are done there is nothing to be certified further which t r is going to be a class representative right and your honor it would be on and on i think what the court is contemplating  what the motion for summary judgment with a grant of judgment renders this there is no action to proceed upon then fourteen our main did that indisputable in a class action world and so i say it and for that matter i mean the rules enabling act make it quite clear that the rules which would include rule twenty three can neither  expand upon or contract in any way substantive rights it sounds to me like that's what you're attempting to do write your honor on i will agree with you on in this regard if it successful and we would have gone on to class sort of didn't you approach summary judgement here we did your honor so what's left after the judge go berg's order we think that  judge goldberg was right in this regard that the decision on summary judgment that he relied upon namely exhaustion of administrative remedies went hand in hand with his decision on class certification and particular commonality he found that yes in the absence of commonality and the ability to get systemic relief he found that his earlier decision on the motion on to dismiss was not dispositive or bit of that and that's often the case i mean that's the that's black letter procedural i think so your honor the difference in this procedural posture is having decided that this case wrong going on in our view but having decided to on my class or vacation that it was not a case where don't understand you to be arguing this in your brief but are you suggesting that somehow the commonality determination which and i don't even understand what hand in hand means but that that th e commonality determination is somehow preempted then for purposes of the conclusion that has to be reached with respect to exhaustion or whether or not exhaustion is futile it would have laid the foundation for our renewed position in administrative remedy to a hearing officer would have been futile and we would  opposed summary judgment on on that basis on on what he did not at the class or dictations stage agree with us on that this was an appropriate class ever said anything to suggest that somehow in a case that is procedurally akin to this one that a determination of commonality is somehow a proxy for the kind a systemic the systemic exception that you wish to avail yourself of for exhaustion that i am familiar with with that opinion and it does not seem to me to be apt for the situation in which we find ourselves either procedurally or substantively let me ask you one more question and then i will step back so my colleagues can inquire but it the only thing i have seen the only case i've been able to identify is that sheds light on the situation in which we find ourselves that is an id a action which i think is just my way of acronym rather and the could said there that the plaintiffs complaint quote focuses on the should comings of a particular component of the school district's special education program the alleged violations do not rise to  truly systemic level in the sense that the i d e a these basic goals are threatened on a system wide basis isn't that the situation that we have here just a component translation interpretation as a component of the greater program that is required under i d e a i actually think your honor on and on that we are seeking on relief for a component of meaningful participation by parents namely language services for this class as a common gateway to allow them to participate in that same manner as their english speaking counterparts we are we are not seeking on will leaf on for every conceivable violation of the idea or every circumstance where meaningful participation assault on may be denied rather for this class the limited english opposition parents we are seeking on reform of the district's policies and practices with respect to translation and interpretation services but you know that you don't attack a specific policy here do you i mean it seems to me that your goal is policy related you want more staffing or more money for staffing or how ever relief can be awarded that would permit greater incidence of translation and interpretation that's really what you want to send objective here is not  are your honor is right in terms of on outcomes but there are specific policies that we have implicated the district on has adopted a policy which they point to and are as are as articulating qana fine their practices in terms of a language services is something very much that you know our belief we would want to reform is you know like he said the special ed counselor makes the decision is did i hear you ultimately the ultimate decision judge heart is they ultimately under their policy by the special education director ok and if you don't if you don't like the decision for your client then you can appeal you can get a fair hearing to challenge that right are our position on iran or is it that the policy should be that when limited english special education director determines what the translation services are going to be and in a particular case for it particular child let's use t r as an example right like what what the chain of command did and the special education director signs off if you don't like that then t r is entitle to a fair hearing correct t r could proceed translation service that has been offered by the school district and approved through the chain of command to the patient director is in appropriate for my client and here are the reasons why right deprived of language services it did invoke the in ministry to process and after a nine month ministry of proceeding where there was a violation a finding of a violation was awarded only backward looking compensatory education what our lawsuit is is seeking to do that that is a matter of that's a matter of relief what process was affor individually to t r correct and in fact there is a right to appeal to a higher administrative body if one is  disappointed in either the the ultimate determination of no relief or a determination that there is relief but the complainant believes it's inadequate that's that's still will the only thing that was determined not to be available by this hearing officer was systemic relief that he lacked the power to do that right you're absolutely right your honor that the hearing officer made it very clear way to allow for reform in appropriate circumstances of the system so that individuals members of the class aren't faced with  twenty three b to you know forward looking way would address this is done it wrong and good but there's a big if there and that is if cohesion can be shown but again you seem to be arguing that the promulgated of a procedural device specifically a b to action which came about with the major amendments back in sixty six dollars designed it aimed most particularly  is is a requisite in these sorts of cases how do you get cohesion where each case by statute is individual ised each plan is individual ised the the facility with english or another language is going to be different for every pair and different for every student how does that lend itself to the kind of cohesion that is necessary for an action under twenty three to your honor we are on i think the way to look at it is this on the individual lies on a aspect of the idea is the program on the i e p the central instrument of effectuating a on a fair and appropriate public education is the program and that indeed would be individualized i stewed and we are not in this challenge i think from a nation about a particular program or even making an individual determination about whether on in the past a parent's participation led to a mistake in the program that's the individual aspect we're focusing on is whether parents have a a common access to participate and for those that don't speak english being able to understand what's going on in a meeting regardless of the individual circumstances that student being able to understand what the teachers are saying about their child is common oh and an understood judge or us i know you're not shy about getting in but i'm kind of a class  about eight years ago i guess it was the d c circuit had a case and id a class action and while that appeal dealt with attorneys fees  is kind of satellite litigation then judge brown decided that she would do make a suggestion and that recognizing that  horse was already out of the barn and nothing could be done it with regard to her point she nonetheless said that curt's should give significant consideration to the question of whether a class action is the appropriate especially close look at whether aggregate relief is appropriate i think i think the plaintiffs your honor i don't have any on resistance to that kind of rigorous rooney on including an idea cases and for the very reasons your honor has articulated there are certainly will be circumstances where parents have a believe a common problem for parents who find themselves in an english speaking world but how is it english proficiency and that problem regardless of the circumstances of their child with disabilities regardless of what the best program is an individual aisle on regardless about what particular input they want to in that program on what they need before any of that can happen is what they need is to be able to communicate with the school and if they don't have interpretation service they don't have translation they can't do that and what we're seeking is before you get into the individual issues on what we're seeking and we believe it is consistent with the history and purpose of the two classes is to allow those parents to communicate it all right if if there her my comments at the outset that a point or for that the plaintiff side would want classic relief is certainly not in another itself surprising nor for certification much more surprising is that the defendant apple ease would follow suit and similarly take on the same order of battle but in the merits of the i d e a claim nd and you help me understand your so i think i can lend historical information to sort of spell out why the proceedings happened at the district court level the way that they did which is that plaintive t r and her mother is me i can hear you i'm having i'm having some difficulty as well maybe if you get closer to your microphone turn up your microphone whatever this is better it is better for me  and that was when the plaintiffs voluntarily dismissed the proceedings so the failure to exhaust arguments didn't become available to the defense until the summary judgment stage because that the current plaintiffs but it doesn't explain for me why on appeal now that you were with the district court's ruling on a dispositive motion which determined claim had failed would you agree with me there's there's no reason to be discussing a class action there is no class to form around a pending claim yes  presidential authority from the rd circuit that would give support to the argument that mr santorum is advancing that this commonality issue goes the point if is left with her individual cause of action to pursue but she has indeed exhausted that right the plaintiffs in this action have not exhausted now the only pointed who had already she previously so where does that leave us it leaves us with two plaintiffs who have not exhausted their administrative remedies and and the the district court properly dismissed their their claims for her failure to exhaust what's left for this court to do that this court affirmed the district court's decision on that ground because it is the plaintiff's burden to establish that there are a sufficiently large number of class members and the only offer only evidence offered by the plaintiffs in front of the district court is the type of evidence that would have required the district court to engage in the type of speculation that is not permissible under this court's decisions  several one thousand not english speaking families that there are a number of families that were the problem exists s factual record reason that those pieces of evidence were not reliable indicator of class status but judge george roth is asking and i have as it should be evident from what i've asked so far i don't think we have to reach the numerosity judge roth has mentioned that in this circuit cruder more is i don't think we've actually used the word presumption but in stewart versus abraham where we st invoked the thirty nine or more of the forty or so that doesn't get us to the impracticability of jointer but it is certainly a big starting point for whether numerosity can be established and it's so it becomes a matter of a reasonable inference on the part of the district court from the evidence presented does not yes i agree with you that that standard so how would it be speculation given the big numbers is about the language proficiency of the parents and none of the numbers put forth by the plane to me they have numbers relating to the language proficiency of the child and they have numbers relating to the language that is spoken in the home but the disher quite properly looked at the record and testimony from district witnesses about why yours do not necessarily mean that the parent is limited in their english proficiency did you have do you have anything more to say with respect to the summary judgment piece here or have you already addressed that sufficiently in response to question deletion or any kind of requirement regarding translation interpretation services because there are what they refer to as a statute that the crux of the case here is that meaningful participation and as this court has recognize for participation requires an individualized review of the actual circumstances given particularly to whether that parent is able to attend the eye or that they're able to ask questions there they are not able to show class questions in fact that who are here specifically looked at the meaningful participation requirement relating to the issues language services program at the ikea team meeting and have to be able to be afforded the opportunity to including being able to notify the parents that the meeting is going to take place and schedule a meeting that's mutually convenient arranging for an interpreter or other action is necessary so the language of the district court notes is that they start to only requires interpretive and trippers or other actions on and as appropriate basis as needed to ensure meaningful participation the court held that given the framework of the discretion of the school personnel who are interacting with the parent are able to make that assessment as to what is necessary so contrary to what mr c n n stated at the court minute by the special education director the provision he's referring to is it's a like a nd point that the way that the school district addresses the necessary services that are going to be provided took parent is done at the appropriate to make those determinations and this is now i've walked to the information in the record regarding how these decisions are made and what information they use to make sure that parents need to so it's clear that not only is that decision as to whether or not what services are going to be provided to a parent didn't we're dealing directly with that parent it's also clear that the intention of the school district as a state as every thanks of all of the individuals of the district testified is that the parent is it primary part of the  one of the plainest waited nine months i think to a special hearing before particular service was provided and yet when you're dealing with young kids in school you need a solution quicker than that is there no way under the provisions of the of the class action type we're dealing with here is that you can here i'm not saying that they have mustered that evidence nor am i suggesting that they can muster that evidence i'm just saying that's why they want the class action device available to them requirements or services that you provide to ensure that language services are provided in special education to the parents and it's clear from the  that not only is that all of the required documents in the i a e a are translated and there's no evidence that they are and that's the district court found that there was no evidence presented in this case that there were systemic failures of any of the but there also is specific information in the procedural safeguards that addresses the information being given to the parents as to what their translation and interpretation services are and what can be asked for and how they can ask plaintiffs in this case are unable to show that there is a mandate that's been violated with respect to meaningful participation in a class way so they act they then try to almost  with information that goes along with that i people and that's translated into eight different languages one that tells them what their rights are to get translation services and they have the right to have the documents translated including grants that specifically provide for in the in the biden statement by the special education department which is trained always down to the school level and ms len who was system as a whole or these individual plaintiffs were receiving the language services that they needed on for example in the case of on  went on informs our position on is that the problems we are see see seeing for our name plans on are the result of policy decisions made by the district that apply not just to be individual parents but to similarly situated parents who are not proficiency in english on and that includes the decision on your honor to provide parents with a draft on e p plants so that when they go to a meeting they will have had an opportunity to book their for that meeting and to follow along during the discussion that's a decision that the district has made that embodies a recognition that for a parent to participate on they need access to that document the commonality for our class is that when that document is given to them in a form that they simply cannot read they are not in the same situation as their english speaking counterparts they go to the meeting on they there is no there's a discussion on about the document they cannot follow along  sometimes there is not a person in the room on who has access to the document and can provide even cite translations that is a common problem on i know my time is limited so i want to emphasize a all my colleagues have any questions they may ask them as you can tell from my position it's not an issue i believe we need to reach but if we if we reach did you know hype would tend to think that there's a good case of numero then the point i really want to emphasize your honor on is what the the hearing officer can and cannot do and we have and we know from experience what that is and i would recommend to the court on consideration of of on here in office for its decision on the request for systemic relief he made clear that his will was to look to see if there had been a pattern where we we know that that's payton on the record the