Doe v. Board of Educ. of Baltimore

• Decision Date: 10 December 1998
• Docket Number: No. 98-1075.,98-1075.
• Parties: Ann DOE and John Doe, parents and next friends of Tom Doe, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF BALTIMORE COUNTY, a Body Corporate and Politic of the State of Maryland; Anthony G. Marchione, Officially, Superintendent, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F.3d 260

Ann DOE and John Doe, parents and next friends of Tom Doe,^* Plaintiffs-Appellants, v. BOARD OF EDUCATION OF BALTIMORE COUNTY, a Body Corporate and Politic of the State of Maryland; Anthony G. Marchione, Officially, Superintendent, Defendants-Appellees.

No. 98-1075.

United States Court of Appeals, Fourth Circuit.

Argued October 27, 1998.

Decided December 10, 1998.

ARGUED: John Doe, The Law Firm of John Doe, P.A., Asheville, North Carolina, for Appellants. Leslie Robert Stellman, Blum, Yumkas, Mailman, Gutman & Denick, P.A., Baltimore, Maryland, for Appellees.

Before HAMILTON and MOTZ, Circuit Judges, and BOYLE, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion, Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge HAMILTON and Chief Judge BOYLE joined.

AMENDED OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case presents the question of whether attorney's fees are to be awarded for the legal services performed by an attorney in obtaining special education benefits for his child under the Individuals with Disabilities Education Act. The district court held that there was no entitlement to fees in these circumstances. We affirm.

I.

Tom Doe is a child eligible for special education and related services under the Individual with Disabilities Education Act, (IDEA), 20 U.S.C.A. §§ 1400-1487 (West 1990 & Supp.1998). His parents, Ann Doe and John Doe, sought to have local public school authorities provide the Lovaas behavioral modification program to Tom. After receiving an adverse decision from a state hearing officer, the Does appealed to the Maryland Office of Administrative Hearings. An appeal panel of that Office found in their favor. The panel concluded that the Lovaas program constituted an appropriate educational program for Tom and ordered that school officials reimburse Mr. and Mrs. Doe for their expenses in providing this program.

When the Board of Education of Baltimore County (the Board) failed to comply with that order, Mr. Doe, an attorney, and his wife filed this action as the "parents and next friends of" Tom Doe. The Board and the Does ultimately agreed that the Board would reimburse the Does in the amount of $10,421.36 for the Lovaas program and $2,012.50 for expert witness fees in the administrative proceedings. The Does also sought an award of attorney's fees for the legal services performed by Mr. Doe. The district court refused the request for attorney's fees, finding that when an attorney represents his own child in IDEA proceedings, the "congressional purpose in enacting the IDEA is best served by denying the award of fees." From that decision, the Does appeal.

II.

The Does sought attorney's fees under the fee-shifting provision of the IDEA, which has since been slightly, and immaterially, amended. The amended statute provides that

in any action or proceeding brought under this subsection, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents or guardian of a child or youth with a disability who is the prevailing party.

20 U.S.C.A. § 1415(e)(4)(B) (West Supp. 1998).

The Does maintain that the plain language of this statute permits an award of fees here, but the Board contends that the Supreme Court's decision in Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991) prohibits such an award. Kay held that a pro se plaintiff who is an attorney cannot be awarded attorney's fees under the fee-shifting provision of the Civil Rights Attorney's Fees Awards Act, which contains language very similar to the IDEA provision. See 42 U.S.C.A. § 1988(b) (West Supp.1998) ("the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs."). The Kay Court reasoned that the term "attorney" in the fee-shifting provision "assumes an agency relationship, and it seems likely that Congress contemplated an attorney-client relationship as the predicate for an award under § 1988." Kay, 499 U.S. at 435-36, 111 S.Ct. 1435.

The Court further found that "the overriding" purpose of the statute was to obtain "independent counsel for victims of civil rights violations" to "ensure the effective prosecution of meritorious claims." Id. at 437, 111 S.Ct. 1435. Permitting a pro se attorney-plaintiff to obtain fees was held not to serve this purpose because a pro se attorney "is deprived of the judgment of an independent third party in framing the theory of the case, evaluating alternative methods of presenting evidence, cross examining hostile witnesses, formulating legal arguments, and in making sure reason, rather than emotion, dictates the proper tactical response to unforseen developments in the court room." Id. The Kay Court concluded:

A rule that authorizes awards of counsel fees to pro se litigants—even if limited to those who are members of the bar—would create a disincentive to employ counsel whenever such a plaintiff considered himself competent to litigate on his own behalf. The statutory policy of furthering the successful prosecution of meritorious claims is better served by a rule that creates an incentive to retain counsel in every such case.

Id. at 438, 111 S.Ct. 1435.

In the wake of Kay, two of our sister circuits have found the Kay Court's rationale regarding attorney-litigants to be applicable outside the § 1988 context; in both of these cases, the courts ruled that attorneys who successfully represent themselves in Freedom of Information Act claims cannot recover fees under that statute's fee-shifting provision. Burka v. United States Dep't of Health & Human Servs., 142 F.3d 1286, 1290 (D.C.Cir.1998); Ray v. United States Dep't of Justice, 87 F.3d 1250, 1252 (11th Cir.1996). No circuit, however, has dealt with a Kay-based challenge to fees for services of an attorney in successfully representing his or her own child in an IDEA claim. The Board maintains that the attorney-parent in an IDEA case "is, in fact, a pro se plaintiff for attorneys' fees purposes" and that Kay thus prohibits an attorney-parent from obtaining an award of fees under the IDEA.

The Board argues that certain statutory language supports its view that an attorney-parent's representation of his child in IDEA proceedings actually constitutes pro se representation. The IDEA undeniably establishes numerous parental rights. Parents are included in the "team" that determines a disabled child's appropriate "individualized education program" under the Act. 20 U.S.C.A. § 1414(a)(20). No evaluation or reevaluation of a child can be made without obtaining parental consent. Id. §§ 1414(a)(1)(C)(iii), 1415(b)(1)(c). Moreover, "any state educational agency" that receives IDEA funds must establish . . . procedures . . . to assure that children with disabilities and their parents or guardians are guaranteed procedural safeguards. Id. § 1415(a) (emphasis added). These procedural safeguards include "an opportunity for the parents or guardian of a child with a disability to examine all relevant records," the provision of "written prior notice to the parents or guardian of the child" of certain information, and the right of the "parents or guardian to an impartial due process hearing" on complaints pertaining to the treatment of the child's case under the Act. Id. § 1415(b). (emphasis added).

Contrary to the Board's contention, however, we do not believe that the IDEA's provision of rights to parents means that an attorney-parent actually represents himself when he pursues IDEA services for his child. Plainly, the focus of the IDEA is the educational needs of the disabled child, not the parents. State officials are charged with formulation of an individualized education plan for the child, not the parents. The adequacy of such a plan is determined by how appropriately it meets the needs of the child, not the parents. Even the wording of the IDEA fee-shifting provision supports the notion that the child is the focus of the IDEA, by providing fees "to the parents of a child or youth with a disability who is the prevailing party ." 20 U.S.C.A. § 1415(e)(4)(B) (emphasis added).

Though parents have some rights under the IDEA, the child, not the parents, is the real party in interest in any IDEA proceeding. The references to parents are best understood as accommodations to the fact of the child's incapacity. That incapacity does not collapse the identity of the child into that of his parents. Recognizing that parents and children are distinct legal entities under the IDEA, the Second and Eleventh Circuits have recently held that parents who are not attorneys may not appear pro se in court on behalf of their children in IDEA cases. See Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123 (2nd Cir.1998); Devine v. Indian River County Sch. Bd., 121 F.3d 576, 581-82 (11th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1040, 140 L.Ed.2d 106 (1998). For these reasons, we cannot agree, as the Board urges, that Mr. Doe is acting pro se in pursuing his son's IDEA claim, in the same fashion as Mr. Kay was in advancing his own civil rights claim. Thus, Kay v. Ehrler does not precisely parallel this case.

Yet Kay clearly does have relevance here. After all, the central thrust of Kay is that fee-shifting statutes are meant to encourage the effective prosecution of meritorious claims, and that they seek to achieve this purpose by encouraging parties to obtain independent representation. Like attorneys appearing pro se, attorney-parents are generally incapable of exercising sufficient independent judgment on behalf of their children to ensure that "reason, rather than emotion" will dictate the conduct of the litigation. Kay, 499 U.S. at 437, 111 S.Ct. 1435. Certainly the danger that a child's meritorious claim will be ineffectively prosecuted by an irrationally emotional attorney-parent is at least equal to the danger that the meritorious claim of...