MATTHEW V., by his Father and Next Friend, CRAIG V.; Craig V.; and Chris Vance, Plaintiffs,
v.
DEKALB COUNTY SCHOOL SYSTEM; Dekalb County School District; and Dekalb County Board of Education Defendants.
United States District Court, N.D. Georgia, Atlanta Division.
*1333 Chris E. Vance, Office of Chris E. Vance, Decatur, Counsel for Plaintiffs.
J. Stanley Hawkins, Weeks & Candler, Atlanta, Wayne E. Brooks, Office of William Tinkler, Jr., Decatur, Counsel for Defendants.
ORDER
STORY, District Judge.
Now before the Court for consideration are Defendants' Motion for Summa Judgment [9-1] and Plaintiffs' Motion for Summary Judgment [11-1]. After reviewing the entire record, the Court enters the following Order.
1. Background
Unless otherwise noted, the following facts are undisputed. Plaintiff Matthew V. is a disabled elementary student who receives special education and related services. He has had an Individualized Education Plan ("IEP") with Defendant De-Kalb County School System pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., since 1997. In the summer of 2000, Matthew's IEP team recognized the need for an assistive technology ("AT") evaluation, which the school provided in September 2000.
Matthew's parents were not satisfied with the AT evaluation and requested an independent AT evaluation. However, in October 2000, they offered to pay for the AT evaluation if the school system would pay for a less expensive test conducted by a Ms. Dillard, an occupational therapist "who specializes in handwriting" and would conduct an evaluation of Matthew's handwriting ability.[1] (Banks Aff. Ex. I.[2]) The school system responded with a letter dated November 7, 2000, indicating that it would consider paying for Ms. Dillard's evaluation, but would make that determination after receiving a copy of her bill and evaluation. (Banks Aff. Ex. 2.) Indeed, the school system emphasized its view that it was not required to pay for an independent evaluation prior to its performance. *1334 (Id.) Matthew's parents responded by a letter dated November 9, 2000, stating their position that the school must either request a due process hearing or provide an independent evaluation at school expense. (Banks Aff. Ex. 3.) "Under the circumstances," the Vances requested an independent AT evaluation at public expense. (Id.) On November 17, 2000, the school replied that the Vances could request a due process hearing, and it reiterated that it would consider paying for Ms. Dillard's evaluation only after it was performed. (Banks Aff. Ex. 4.) However, the school noted that it would pay for the evaluation as long as it was not performed "in an obviously inappropriate manner." (Id.) The Vances replied by a letter dated November 24, 2000, asking the school system to either provide an independent AT evaluation or request a due process hearing. (Banks Aff. Ex. 5.) The school system responded on November 27, 2000 that "as long as Ms. Dillard's evaluation is not obviously defective, the school system will pay for it." (Banks Aff. Ex. 6.)
On November 29, 2000, the Vances again asked for information from the school about where an independent educational evaluation could be obtained. (Banks Aff. Ex. 7.) Finally, the Vances requested a mediation, and ultimately, they sought a due process hearing in January 2001. (Banks Aff. Ex. 10.) A Notice of Hearing was filed by the state administrative law judge ("ALJ") on January 25, 2001.
In the meantime, Matthew's parents obtained an independent AT evaluation at their own expense on December 7, 2000. The school system received a copy of the AT evaluation on January 26, 2001, and gave Ms. Vance a check for the cost of the evaluation, $491, on February 5, 2001, just prior to a hearing before the ALJ on Plaintiffs Motion for Summary Determination.
The ALJ granted Plaintiffs motion in a decision dated February 28, 2001. In the Initial Decision, the judge concluded that the Vances' November 9 letter contained a request for an independent educational evaluation at public expense. Thus, "Respondent should have requested a due process hearing or provided the evaluation at public expense." (Initial Decision, Conclusions of Law ¶ 2.) However, the ALJ did not consider Plaintiffs' request for attorney's fees because she determined that she did not have authority to grant such fees. Matthew's mother, Chris Vance, is an attorney and member of the Georgia Bar Association. During the due process procedure, Ms. Vance represented Matthew.
Plaintiffs filed this action pursuant to 20 U.S.C. § 1415(i)(3)(B), seeking attorney's fees and costs incurred in the state proceedings. They also request an award of costs and expenses, including attorney's fees, associated with this litigation. Both parties have moved for summary judgment.
II. Discussion
A. IDEA Framework
Congress promulgated the IDEA with the purpose of ensuring "that all children with disabilities have available to them a free appropriate public education ...." 20 U.S.C. § 1400(d)(1)(A); Cory D. ex rel. Diane D. v. Burke County Sch. Dist,
The IDEA further gives district courts discretion to "award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." Id. § 1415(i)(3)(B). Thus, parents may bring an independent claim for attorney's fees in a district court after their child prevails before a state ALJ. Mitten v. Muscogee County Sch. Dist,
B. Summary Judgment
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the non-movant. Adickes v. S.H. Kress & Co.,
Here, Defendants base their motion on three independent arguments: (1) Matthew's attorney is also his mother; (2) Plaintiffs were not prevailing parties before the ALJ; and (3) Plaintiffs unreasonably refused settlement offers and failed to obtain more favorable results. Plaintiffs dispute these arguments and contend that Matthew was the prevailing party in the administrative hearing. While the Court holds that an attorney-parent may recover fees pursuant to the IDEA, it nevertheless holds that Plaintiffs did not prevail; thus, the Court does not consider whether Plaintiffs unreasonably refused settlement offers.
1. Recovery of fees for attorney-parent's representation
Matthew's mother, Ms. Vance, represented Matthew before the ALJ in her capacity as an attorney. Raising an apparent issue of first impression in this circuit, Defendants contend that Matthew and his parents are barred from collecting attorneys' fees for Ms. Vance's representation. Defendants' argument begins with Kay v. Ehrler,
Two other circuits have held that Kay mandates a bar on awarding fees where a parent represented his child as an attorney. Woodside v. Sch. Dist. of Phila. Bd. of Educ,
The Third Circuit, in an opinion authored by Judge Phyllis A. Kravitch,[4] echoed Doe's holding in Woodside v. School District of Philadelphia Board of Education,
Plaintiffs question the leap that the Doe and Woodside courts took in extending Kay. As they emphasize, Ms. Vance did not-and could not-proceed pro se on behalf of Matthew. In Devine v. Indian River Sch. Bd.,
The Court respectfully disagrees with the rationale of Doe and Woodside. First, nothing in the language of the statute prohibits the award of fees in these circumstances. Indeed, the IDEA, unlike § 1988 which was at issue in Kay, expressly describes the circumstances in which fees are unavailable. See 20 U.S.C. § 1415(i)(3)(D) (prohibiting fees where school made written offer of settlement more than 10 days before proceeding or where fees relate to meeting of IEP team). Under the familiar canon of construct on, expressio unius et exclusio alterius; that is, the expression of one thing is the exclusion of others. Plumbers & Steamfitters Local No. 150 Pension Fund v. Vertex Constr. Co., Inc.,
Second, that parents and then children are distinct entities for purposes of IDEA claims seems difficult to brush aside. See Devine,
While the Court recognizes that this issue is a close one, it declines to follow Doe and Woodbine in light of the text of the statute, its legislative history, and the distinctions between the facts here and in Kay. As described below, however, Plaintiffs are nevertheless unable to recover fees.
2. Prevailing party under the IDEA
Defendants contend that Plaintiffs were not the "prevailing party" within the meaning of the statute because the administrative ruling did not alter the parties' relationship. Plaintiffs respond that they prevailed because the AL. stated that Defendants should have either requested a due process hearing or provided him an independent evaluation at public expense. Additionally, Plaintiffs submit that they prevailed under the "catalyst theory." In reply, Defendants argue that even if Plaintiffs did prevail, the administrative ruling was in error. The Court addresses the administrative ruling before turning to a prevailing party analysis.
a. Correctness of ALJ's determination
As an initial matter, to the extent that the parties dispute the correctness of the *1339 ALJ's determination, that issue is not properly before this Court. In particular, Defendants argue that because they paid the Vances for Matthew's independent evaluation prior to the due process hearing, the issue was moot and the ALJ should not have rendered a decision. Plaintiffs respond that the dispute was not moot because there was still an issue to be determined: whether Defendants should have provided the independent evaluation. There was some discussion of mootness during the hearing before the ALJ. (Tr. at 35-36.) However, the ALJ's order does not set forth any analysis of mootness.
Regardless of the propriety of the ALJ's determination, this Court may not review it because Defendants have not followed the proper procedures for challenging the outcome of a due process hearing. First, Defendants should have appealed the outcome to Georgia's educational agency. The IDEA provides that parties "aggrieved by the findings and decision rendered" in a due process hearing may appeal to the State educational agency. 20 U.S.C. § 1415(g). Any party so aggrieved "who does not have the right to an appeal under subsection (g)" may bring a civil action in any appropriate state court or in a federal district court. Id. § 1415(i)(2)(A). The IDEA thus requires exhaustion of administrative remedies prior to filing suit in federal court. N.B. by D.G. v. Alachua County Sch. Bd.,
Here, Defendants state that they did not appeal the decision in the due process hearing because "there was no live controversy to support an appeal." (Defs.' Mot. for Summ. J., at 14 n. 7.) Essentially, this statement is no different than Defendant's argument that the issue was moot by the time the ALJ issued her determination. Thus, Defendants' reason for failing to appeal seems instead to be one of the reasons they might have appealed. Regardless, Defendants did not appeal, nor did they bring an action before this Court under § 1415(I)(2). Thus, the Court assumes, without deciding, that the ALJ made a proper determination. Cf. Dep't of Educ. v. Rodarte ex rel. Chavez,
b. Prevailing party and catalyst theory
Defendants contend that Matthew was not the prevailing party before the ALJ because he was not awarded any relief. As Defendants argue, "Plaintiff specifically requested a monetary award and in return only received an order which restated ... the law." (Defs.' Mot. for Summ. J., at 12.) Even though the ALJ adopted Plaintiffs' argument relative to what Defendants should have done, Defendants urge that the order did not alter the legal relationship of the parties. Plaintiffs respond with alternative arguments. First, they seem to contend that the ALJ's determination was in the nature of a declaratory judgment. (See Pls.' Mot. for Summ. J., at 20 (citing federal and state declaratory judgment statutes).) Indeed, they argue that the order altered the parties' legal relationship *1340 because, subsequent to the administrative ruling, Defendants in another matter provided the names of independent evaluators and agreed to pay for an independent evaluation prior to its taking place. Second, Plaintiffs urge that they were prevailing parties because the imminent due process hearing was the catalyst for Defendants' reimbursement of the cost of the independent evaluation.
A party "prevails" when actual relief on the merits of his claim "materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff. Farrar v. Hobby,
At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment procures .... Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement ... is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff.
Hewitt v. Helms,
Here, even if the ALJ's determination was in the nature of a declaratory judgment, it does not alter the legal relationship between the parties. Plaintiffs argued before the ALJ that "respondent school system either had to provided petitioner an independent evaluation at public expense or ask for a due process hearing...." (Pet'r's Mot. for Summ. Determination at 1 (ALJ R. [10-1]).) When the ALJ issued her determination, however, the school system had already given Plaintiffs a cheek for $491. The ALJ's order acknowledges that fact and states, "Respondent should have requested a due process hearing or provided the evaluation at public expense." (Initial Decision, Conclusions of Law ¶ 2.)
The ALJ merely made a favorable statement of law which governed the parties prior to, as well as after the proceeding. While the determination may be said to have provided moral satisfaction to Plaintiffs, it did not require Defendants to modify their behavior toward Plaintiffs in any way. See Rhodes v. Stewart,
Plaintiffs, however, argue that Matthew was the prevailing party under the "catalyst theory." As they describe, initiating the due process hearing caused Defendants to alter their behavior by reimbursing Plaintiffs for the independent evaluation. This argument may have been viable prior to the Supreme Court's decision in Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Human Resources,
In Buckhannon, various assisted living homes brought suit in federal court to challenge a cease and desist order issued pursuant to a state safety requirement by the West Virginia State Fire Marshal.
The Supreme Court held that the "prevailing party" fee-shifting provisions of the FHAA and ADA did not authorize fees under the catalyst theory. Id. at 610,
While Buckhannon focused on the FHAA and ADA fee-shifting provisions, the opinion was worded broadly in terms of its applicability to other fee-shifting provisions that employ the "prevailing party" standard. The Court stated, "we have interpreted these fee-shifting provisions consistently...." Id. at 603 n. 4,
The Eleventh Circuit has not considered whether Buckhannon mandates the end of the catalyst theory in IDEA cases. However, the Circuit's analysis of a different fee-shifting provision illuminates the issues *1342 here. See generally Loggerhead Turtle v. The County Council of Volusia County,
The Circuit concluded that Buckhannon did not invalidate the catalyst test as a basis for fee awards under the Endangered Species Act ("ESA"). Id. at 1325. First, the court emphasized that the ESA's fee-shifting provision is worded differently: courts may award attorney's fees "whenever the court determines such award is appropriate." Id.; 16 U.S.C. § 1540(g). Unlike the "prevailing party" language at issue in Buckhannon, Congress intended that "whenever... appropriate" "extended to suits that forced defendants to abandon illegal conduct, although without a formal court order."
Thus, implicit in Loggerhead Turtle is the conclusion that Buckhannon should be applied similarly to all "prevailing party" statutory analyses. Indeed, courts in other jurisdictions have concluded that Buckhannon extends to the IDEA. See John T. ex rel. Paul T. v. Del. County Intermediate Unit,
Because the Court concludes that Buckhannon applies to IDEA`S fee shifting provision, the next step is to determine whether the Defendants' payment of $491 to Plaintiffs was more than a voluntary change made without judicial sanction. In the Eleventh Circuit, when a court either incorporates the terms of a settlement into its final order or expressly retains jurisdiction to enforce the settlement, the result will bear the necessary judicial imprimatur to support prevailing party status. American Disability Association, Inc. v. Chmielarz,
Here, the facts are far removed from Chmielarz. The payment, while referenced in the ALJ's order, did not accompany any formal agreement between the parties that was also incorporated into the order. Nor did the order purport to retain any power to enforce any agreement between the parties. At most, the payment was a "voluntary change in conduct" fitting squarely within the now-unavailable catalyst theory. Buckhannon,
To summarize, the Court finds that the ALJ's determination did not bestow prevailing party status on Plaintiffs because it did not alter the legal relationship between the parties. Moreover, Plaintiffs may not recover based on the catalyst theory after Buckhannon. Finally, Defendants' payment to Plaintiffs was a voluntary settlement made without judicial imprimatur and so cannot support prevailing party status. Accordingly, Plaintiffs are not entitled to attorney's fees and costs as a matter of law.
III. Conclusion
Defendants' Motion for Summary Judgment [9-1] is hereby GRANTED, and Plaintiffs' Motion for Summary Judgment [11-1] is hereby DENIED.
NOTES
Notes
[1] Defendants characterize the separate evaluation as a "handwriting evaluation," while Plaintiffs call it an "occupational therapy evaluation." (See Defs.' Resp. to Pls.' Statement of Material Facts as to Which There are No Genuine Issues, ¶ 3 (identifying discrepant characterization).) The characterization evaluation is not material to the resolution of this case; the Court refers to it asa handwriting evaluation or "Ms Dillard's evaluation."
[2] The evidence upon which Defendants rely is compiled in the state administrative record where this matter was originally considered. This information, and the correspondence between the parties, is located at Docket Number 10-1.
[3] The language of IDEA's fee provision echoes that of § 1988, and it is generally interpreted like § 1988. See 42 U.S.C. § 1988 ("the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee"); W.L.G. v. Houston County Bd. of Educ,
[4] Judge Kravitch, a Senior Judge for the Eleventh Circuit Court of Appeals, was sitting by designation. Woodside,
[5] It is not clear under Georgia law that a child could sue his parent for legal malpractice. Compare Coleman v. Coleman,
[6] Attorneys may represent their family members; for example, the Rules expressly allow attorneys to prepare wills for family members, even if such a will makes a bequest to the attorney. Ga. Rules, R. 1.8.
[7] The Georgia Rules do not appear to limit who may make a grievance about a particular attorney. See Ga. Rules, R. 4-202. Thus, such a grievance could be made by opposing counsel, or even the child's other parent or another family member.
[8] On the other hand, any concerns that a parent-attorney may spend an inordinate amount of time on the matter and seek excessive fees are ameliorated by the fact that fee requests are subject to the Court's approval; further, inappropriate charges may be excluded from any award. See 20 U.S.C. § 1415(i)(3)(C) (Fees "shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.").
[9] There is a circuit split whether Buckhannon limits prevailing party status to outcomes embodied in consent decrees or judgments. See Christina A. v. Bloomberg,