political statute of limitations for attorneys fees claim brought by prevailing party parents from an id a due process hearing at the state level and secondly the standard by which the court reviews summary judgment in a grant of summary judgment with regard to the requisite level of showing and the burden of production of persuasion on the part of the moving party i'd like to start st with the substantive issue which is a summary judgment matter as to this case this case was brought by mr mrs richardson was given related to the education of their child l l as an individual with numerous disabilities the most notable of which is autism elegy time when he was in th grade suffered a traumatic event beyond that he had had significant setbacks with regard to his education over the course of his career at omaha in two thousand and sixty october l was removed from school as a result of it is  occurred on october th of two thousand and sixteen and it wasn't until may of two thousand and seventeen that l received services from the school again in the form of actual instruction beyond that issue and the lack of services during that period of time l suffered a lack of testing a lack of progress reports and in a political and output i e piece he suffered from disparate and different treatment at the hands of the educators and the and the administration of omaha and all that has been testified to by mr mrs richardson and have been privy present to the court in the form of an opinion from dr knox related to the standards of of the educators in the sense and case the defendant moved for summary judgment the court granted some the judge a motion indicating that the defendant had better proper showing as a relates to its burden of production under rule fifty six the defendant's sabir the fact that that supported th idea of a showing cited no materials in the record referenced only the complaint and a document attached to the complaint which was for the purpose of establishing the plate us right to attorney's fees at the case below the defendant will make much of this matters being similar to an id appeal it is not an i e i d e a appeal the only id issue before the court is the issue of the a political attorney's fees to the prevailing party at the due process hearing the claims in this sort of a preliminary question yes your honor i think you're what you're arguing is sort of a failure to reevaluate and in the failure to have an i e p no sir those certainly form part of the basis for the where in counts two and three you did plead those two issues so as a relates to the pleading of those issues in the complaint counts two and three speak to several different aspects with which mr l was treated by the school  was treated hostile he was treated discreetly he was tray discriminatorily and so all of those aspects together we are argue were discriminatory as a relates to his disability within the context of his education he may be discriminatory but they're not failure to reevaluating o failure to have an eye as it relates to the educational services we certainly believe that the complaint is broad enough as it's written as it was written initially to encompass all aspects of discrimination is certainly does focus on lot on the idea of bullying or or disparate treatment however i don't believe that that in this instant case under five or four or eighty a that bullying can't be part of a greater a greater claim for discriminatory discriminatory treatment in general and i'm not arguing now and i just want to know idea that there is a violation under the id certainly nessun not necessarily dispositive of gross misjudgement or bad faith can certainly give rise to a question of fact like in this instance we believe it has as it relates to the requisite standard in order to was pointed directly to in the response relative to the location of the opinions about the standards of care and the act and the activities that they believed were in violation of the experts believe are a violation of those proper standards discriminatory and so our primary point on summary judgment is that the district failed to make a showing that these three facts which are unsupported which don't reference back to any document in the record are not sufficient under the celtic standard that under that standard the court held that there had to be some sort of showing you can't just make the conclusion reallocation that no record no evidence exists and then put the burden upon the nonmoving party to then come forth with whatever they think exists to support that is it that proposition  reminded of of our trial courts and our jury instructions for instance i think it's one point zero four where the judge comes in before the jury every time and says you're reminded just to know that arguments of counsel are not evidence and similarly here if you look at those facts in the statement of undisputed facts those paragraphs which reference this idea of no evidence only talk about bullying number one and number two are unsupported by any documents in the record and are silly statements of counsel so from that perspective we don't believe that the standard warrant a question of fact being presented to the jury as a relates to the other matter on the table your honors it's nuanced it's never been before this court it has been before other courts which have reached v varying results we have the th circuit which is not yet decided taking a similar position to this court and britney which is that at this point we don't necessarily need to decide the issue the night of the th circuit in the zipper case has decided that the attorneys fees claims which  given which are provided under the i d e a or the id he i am now that those attorneys these claims are subject to review under the state statute limitations for toward actions or potentially for contract actions i believe and then on the most of the allergists statute correct it is correct justice our judge all the the idea that we look at the most analogous state statute we borrow in the instance it is not inconsistent with federal law which i think is interesting here you know the court in jones the supreme court in jones versus r r donnelley indicated that the idea is to find consistency with regard to these federal statutes across the country and where these issues are settled sure we have this longstanding history of borrowing but where they are not settled like here where there has been no established statute limitations to be applied uniformly across the country or even as a relates to which specific state statute limitations you would thousand and four there was only one party able to bring an attorney sequence and that party was a prevailing parent in two thousand and four congress amended the act they allowed for us it's also possible claim under two circumstances for prevailing district or they the appellee would have you believe ninety days versus our request of a bombing of a three year statute you would have a situation where you have inconsistent and equitable statutes of limitations whereby a school district could sit on its laurels for four years and wait until a parent is out of that school district and then go after them for what they believed was a frivolous claim and then they didn't and then potentially a parent would be then required to bring the same claim within a much shorter period of time and if the court has no further questions i'd like to reserve question here by one of time or starch i don't believe so i believe the court established that principle in the brady overspend ok so that's when that's what kind of established idea that no matter what that you were going to look for we wait until this appellate time is over and then once that's cleared you then bring your action i don't think it would prohibit someone from bringing one earlier if they did though they would be at risk of having competing claim a little risk or not knowing yes or  simultaneously the merits and the three questions yes you are ok thank you thank you know you were talking about the inconsistency that would be created by these differing statutes of limitation yes not explain why it really would not be and then equitable matter for the periods to be different i don't think so and the reason i would say that is because you have these mutuality of claims regardless of their different elements the elements i don't think would necessarily have to be equal what they're seeking is the same thing we're seeking the same relief which is this payment of attorney ses and so if in this instance you have a four year window for a school district under the judicial improvements act and a ninety day or a twenty one year or two year window for a parent you end up frustrating the purpose of the idea which is to you know which is to support and foster the safeguards for the parents in th honor my name is marshall i'm here on behalf of omaha school district with katie campbell who is a council to well with me and who also was on the brief i'd like to start st addressing judge shepherd's comments questions and also judge arnold's and try to focus the court st if if acceptable on the attorney these issues on the issue about whether it would be equitable or not to apply a four year to a claim by a district versus a shorter statute for a parent i would st point out to the court that no court has applied that for your statute to a school district as of this point so we don't even have that question before us and i won't get too far into the trenches on this but we don't think there's any applicability of the four year statute here because the right of the parent to recover attorney's fees predate the get accurate of the four year catch all statute and so since it's not a cause of action that accrued after one thousand nine hundred and ninety the end it as a matter of law would not apply if it did apply we do believe it might be equitable because it's very different from filing a claim essentially for sanctions which is is what a district would be doing because it would truly have to be a frivolous claim and have to make a showing on that basis judge arnold as to the the question you asked about whether the statute authorizes a civil action for the recovery of attorneys i would submit to the court that the statute just far from being that clear or precise on that point what the statute says in terms of  civil action is that any party agree so not a prevailing party any party aggrieved by the findings in decisions made under subsection f or k who does not have the right to an appeal subsection g in any party aggrieved by the finding so on and so forth may bring a civil action so that's the context in which civil action is used is the aggrieved party when you get to the point that deals with attorneys the the statute says that in any action or preceeding brought under this section the court in its discretion make award a reasonable attorneys fees as part of the costs so the language is somewhat different it talks about it could be attorneys as it as it is an important issue to be to be resolved in in this circuit as you know judge arnold we came close to it in the brittni ok there the court had the opportunity to consider the application  of the arkansas statute as the most analogous statute the court ultimately determined that it need not reach that finding at that point because the court reversed on the when the clock starts is as you just said judge arnold and because the court reversed on when the clock starts there was no need to make that subsequent decision on when does it end but we do now have three district court judges in arkansas all who have made the same ruling and they have all ruled that the rd that ninety day clock is the correct one that the arkansas all statute that relates to  the children with with disabilities act is the proper statute to apply and that that ninety day period is the most analogous we have well st of all because it is it is arkansas laws enabling act two to abide by and enforce the individuals with disabilities education act so it is the standard that then the other question there's apparently and i cases we consider things other than analogies we consider in some instances those are all the equitable considerations and so how do take that have some influence on the result but it's not clear to me exactly in what order you're supposed to consider these things and which way the most so judge arnall i would suggest that all of those things cut in favor of applying the statute is as you know we we've had four circuits address the issue and we're two and two so this court if it chooses to address the issue today this court's going to break the tie at least for the time being if we're going to have a majority approach in the country and as the court knows we have the th in the th circuit who have decided to go with with an independent cause of action type statute of limitations and then we have the the the sabbaths and the th circuit who have decided to go with a statute much akin to the arkansas all children with disabilities act and i would point out in particular the powers case because i don't know what surprised the court it was the most persuasive to me and in that case of course the statute was not ninety days the statute for bringing in appeal substantive appeal of the due process hearing was only thirty days thirty days not ninety and you could tell reading the court's analysis of that case that the court was concerned with applying only thirty days and i really time on the powers court but paris has some unique circumstances in that there was not even a due process hearing it was a mediation and there had been a whole lot of engagement between the department of education their the parents there had been no notice to the parents obviously the law wasn't resolved at that point but despite all of those circumstances the powers court decided that the thirty days was the most analogous and appropriate in the th circuit has since followed that richardson case of an by the federal government to decide whether ninety days was the appropriate time to appeal the substantive issue or not they decided ninety days was appropriate and certainly the fee issue as an ancillary issue is not nearly as extent to that in birmingham the decision was made that you should look for the most analogous state statute but it's not to the extent that in birmingham congress had not yet spoken on the ninety day appeal time and so in that case congress had not signaled ninety days is the appropriate appeal so in that instance the court decided that we should we should look to a more kind of independent right of action type statute of limitations in my memory as my memory is it was the three year statute of limitations for torts but you know that case did not deal with fees that they dealt with the substance of the appeal itself and here the substance of the appeal itself would no longer be three years it would now be ninety days if you go to the th circuit it would be thirty days in at least in the state that that won him unaided from so with all due respect to your brother i don't think that it does have much application here except to the extent that the court looks at the most analogous statute i would tell the court that i think that this court is much as i want to ruling on this point and i think it's important now that  that my life is so consumed with representing school districts i think it's important for us to know the answer but but i think that if this course so chose the court doesn't again have to reach the issue and the reason why the court doesn't necessarily have to reach the issue is because judicial stoppel and as we argued before judge brooks who did not rule on that issue is is  position of the district that the richardsons are judicially stopped from claiming that they are the prevailing party and the reason why they are judicially a stop from claiming that they are the prevailing party i days you know who is what and so there would be a suggestion that you're one or the other now i do think there's a scenario where you could be one and it could change i could file as an aggrieved party request that the court deem a upon reversal of the prevailing party and then have an opportunity to proceed as a prevailing party but here what happened of course see is that the richardson filed as the aggrieved party on the ninety day and then failed to serve within the next ninety days then asked for an extension to serve which judge brooks denied and then came back with a one  and said we're the prevailing party give us it was a clear in the round where judge brooks had ruled which is your statute is gone i mean he called it out in his order that he was not mindful of the fact that the statute had head or or very possibly could have run and so you know we take off the baseball hat we put on the cabinet we had and here we are you know now the prevailing party and we want three of course you know  we believe that statute was missed too for all of the reasons that we by argued that it was still the ninety days after the ninety days so we still argue that but if the court were so inclined to wait and see what a few more circuits do over the u s supreme court does on this issue and i do think it's an issue disco going to have to be resolved there and who knows maybe i'll get my st opportunity i'm fifty six maybe by the time i'm sixty five i can go up there and argue on but it's something just going to have to be resolved it at some point but it doesn't have to be today if the court were inclined to agree with our position that judicial stoppel precludes the  was brought forward by the moving party by the district when the motion for summary judgment was filed we obviously vehemently disagree with that characterization if the court were to look at the statement of undisputed facts that were filed by the district they they stated and then incorporated the administrative record that had been created at the administrative level and there of course there was days of sworn testimony that that complaint did we talk about the failure to educate in the failure to to have an appropriate i p you know all of those claims are now part of what i call richardson three we've now gone through another due process and we're back in front of judge brooks again but the counts two dollars and three dollars that remained after the image initial motion to dismiss were were based on bowling and the claims of bullying are set out in great detail in the record and in the decision and there were  essential claims of bullying and there was testimony supporting that so we pointed to the administrative record in the lack of discovery in said they can't meet their burden because here is what the evidence shows in the record and with that opportunity they offered nothing nothing they said look over here let's talk about failure to educate and then what what judge groups did appropriately was number one determine whether those failure to educate claims were in the complaint he decided they were not they gave him the benefit of the doubt and did the analysis anyway and determined that they had not met the he just to say under he just assumed they were in the complaint when they were not required to do that that is correct would require the the gross misconduct in order to assert their claims anyway my time has expired before i got that side out but it isn't very well thank you very much el i don't believe appropriately applies to a case that is without jurors that the court never obtains jurisdiction over and which is an elegy number one and number two under the new hampshire standard i don't believe that any any aspect or any element stoppel applies here namely that there was never any jurisdiction over the case and there was never any reliance upon any main main is of any position by the quarter by the opposing party and thus there was no prejudices or relates to that  as far as the allegations in the complaint of the summary judgment and whether or not it was specifically stated as to the failure to educate certainly the failure educate claims were brought they were litigated they were did they were they were examined looking at the record and we appellate or at our our the documents supplied in the record including the deposition transcripts of mr mrs richardson those specific issues were addressed in deposition the defendant asked specifically whether or not they had information about the failure to educate and what those claims constituted the idea that there was no knowledge or no notice under the notice pleading statute of a discrimination claim for failure to educate or any aspect of mr of the richardsons education i think is unfounded and so from that perspective i would believe that our complaint out of the notice standard would sufficiently give rise to a claim for discrimination in all aspects of his education including the provision of that education as well as the idea of disparate treatment and bullying potentially  from the perspective of whether or not they they point to administrative record the administrative record of the underlying due process claim or the prior to process claim is not ancillary to an eighty  claim it is not part of the record in this case the the order was submitted as an attachment and it was referenced for the purpose of supporting the idea that the richardsons are the prevailing party and that this hearing officer had found the certain things there was no review of the factual findings of the process hearing officer at the court level there can be no precludes of effect as it relates to that review of those facts even under the moderate case which has been cited by the by the the pelleas in this matter the idea that there should be produce of a fact as to a due process hearing i think requires the court to an to analyze and to determine whether the due process hearing was correctly determined and in this case that was not done the only facts were viewed in the light of will be decided in due course