AMENDED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN DOE AND JOHN DOE, parents and

next friends of TOM DOE,*

Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF BALTIMORE

No. 98-1075

COUNTY, a Body Corporate and

Politic of the State of Maryland;

ANTHONY G. MARCHIONE, Officially,

Superintendent,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CA-96-3734-WMN)

Argued: October 27, 1998

Decided: December 10, 1998

Before HAMILTON and MOTZ, Circuit Judges, and BOYLE,

Chief United States District Judge for the Eastern District of North

Carolina, sitting by designation.

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Affirmed by published opinion. Judge Motz wrote the opinion, in

which Judge Hamilton and Chief Judge Boyle joined.

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*At the appellants' request, throughout we have substituted Ann Doe,

John Doe, and Tom Doe for their real names.
COUNSEL

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.

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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 ser-

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vices 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

[i]n 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 (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.

The Court further found that "the overriding" purpose of the statute

was to obtain "independent counsel for victims of civil rights violations" to "ensur[e] the effective prosecution of meritorious claims."

Id. at 437. 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

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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.

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,

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"[a]ny 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 attorneyparent 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 Wegner 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 , 118 S. Ct. 1040

(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.

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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. 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 a pro se civil rights

plaintiff, who is also a lawyer, will be bungled without the assistance

of an independent attorney.

Indeed, although Mr. Doe obtained an excellent result for Tom --

complete reimbursement for the Lovaas program -- and although we

do not in any way denigrate his care and effort in representing his son,

this case illustrates the difficulties of encouraging inexperienced

attorney-parents, via a statutory fee award, to represent their own children in IDEA proceedings. Because Mr. Doe failed to provide state

officials with timely notice of his proposed witness list prior to the

initial administrative due process hearing, the Does were not permitted to present the testimony of those witnesses at the hearing and the

hearing examiner rejected their claim. If Mr. Doe had provided timely

notice of the witness list, all subsequent proceedings in this case

might, as the Does themselves note, have "been avoided altogether."

Brief of Appellant at 4 n.1.1 An attorney more familiar with the relevant procedures might well have obtained relief for Tom more

quickly and at far less cost. Similarly, although the Does seek costs

and pre- and post-judgment interest on appeal, they did not properly

advance or preserve these rights in the district court. More experienced counsel would likely have alleged the right to interest in the

complaint and sought costs pursuant to 20 U.S.C.§ 1415(e)(2).

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1 The Does provided the Board with four, rather than the required five,

days notice of the proposed witness list. We do not suggest that the

hypertechnical insistence of the Board's attorney on five days notice is

to be applauded. Such conduct seems unnecessary and graceless when

dealing with inexperienced opposing counsel and a government program

designed to benefit disabled children. However, graceless or not, the

Board's counsel did act within his rights.

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Indisputably, disabled children pursuing IDEA claims merit the

very best representation. In their brief, the Does note that

[t]he IDEA was enacted to develop a mechanism for providing disabled children with an opportunity to become functional in our society. No one is more likely to lead the fight

for those children than a parent who has been scarred by a

school district that refuses to comply with the IDEA. There

is no reason to compound a child's handicap simply because

his parent is an attorney.

Brief of Appellants at 9. We completely agree. Loving parents, like

the Does will of course "fight" for their children -- with or without

a statutory award of fees for their services. To permit an attorneyparent to recover statutory fees for representing his child in IDEA

proceedings is thus not necessary to ensure a parent's efforts on

behalf of his child, but it might well lessen the chance that a disabled

child would have the benefit of legal services from an independent

third party. In this way, such a holding would "compound" the

"child's handicap simply because his parent is an attorney." Precisely

because disabled children deserve independent legal services, the

IDEA fee-shifting provision should be read to encourage parents to

obtain independent legal services. Indeed, courts must take special

care to protect the interests of children, given that an "infant is always

the ward of every court wherein his rights or property are brought into

jeopardy, and is entitled to the most jealous care that no injustice be

done to him." Wegner, 146 F.3d at 125 (quoting Johns v. County of

San Diego, 114 F.3d 874, 877 (9th Cir. 1997).

In sum, although an attorney-parent's representation of his child is

not pro se representation, such that Kay is not on "all fours" with this

case, much of the rationale articulated in Kay does apply here. That

rationale provides a clear basis for invoking the judicially created special circumstances doctrine. In the context of other fee-shifting provisions, e.g., those in 42 U.S.C. § 1988 and Title VII of the Civil Rights

Act of 1964, the Supreme Court has recognized that although a prevailing party "should ordinarily recover an attorney's fee," "special

circumstances" can render "such an award unjust." See, e.g., Hensley

v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting Newman v. Piggie

Park Enters. Inc., 390 U.S. 400, 402 (1968)) (§ 1988); Albemarle

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Paper Co. v. Moody, 422 U.S. 405, 415 (1975) (Title VII) (dicta).

Although the Court has not discussed the special circumstances doctrine in connection with the IDEA fee-shifting provision, the legislative history indicates that Congress intended courts to interpret it as

they have § 1988 and Title VII. See S. Rep. No. 99-112, at 13-14

(1985), reprinted in 1986 U.S.C.C.A.N. 1798, 1803-04.

Courts have universally recognized that this "special circumstances" exception is very "narrowly limited." See, e.g., Bonnes v.

Long, 599 F.2d 1316, 1318 (4th Cir. 1979), overruled on other

grounds by S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.

1994). Only on rare occasions does a case present such circumstances,

see, e.g., Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1044-45

(4th Cir. 1976), and we have uncovered no case in which any circuit

has found a basis for the special circumstances exception in a situation similar to that at hand.2 However, given a parent's special and

close relationship with his or her child, we believe that Kay does provide a basis for invoking the narrow special circumstances exception

here. We note that the district judge in this case, another distinguished

district judge in this circuit, and the Indiana Supreme Court have

reached a similar conclusion. See Rappaport v. Vance, 812 F. Supp.

609 (D. Md. 1993), appeal dismissed, 14 F.3d 596 (4th Cir. 1994);

accord, Miller v. West LaFayette Community Sch. Corp., 665 N.E.2d

905 (Ind. 1996).

We recognize, of course, that other judgments could be made as to

how the policy interest in ensuring "effective prosecution of meritorious claims" is best served. For example, reimbursing pro se attorneyplaintiffs, who have prevailed in difficult, unpleasant cases when they

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2 Prior to Kay, the Ninth Circuit suggested that determination of

whether "special circumstances" exist in an IDEA case involves examination of "two factors: (1) whether awarding fees would further the congressional purpose in enacting" IDEA and "(2) the balance of the

equities." Abu-Sahyun v. Palo Alto Unified Sch. Dist., 843 F.2d 1250,

1253 (9th Cir. 1988). Neither the Supreme Court nor this court has

embraced this two-part test in subsequent IDEA cases and we decline to

do so here. This "test" contains no real standards and provides no legitimate reason for departing from the usual rule of awarding reasonable

fees to prevailing plaintiffs under fee-shifting statutes.

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can demonstrate that they could not obtain other representation, could

well be found to further this interest. But, nothing in Kay suggests that

the difficulty of a case or the failure to find other counsel provide a

ground for awarding fees to a prevailing pro se attorney-plaintiff.

Moreover, contrary to the Does' suggestion, the Kay Court specifically refused to base its rationale on a need to eliminate abusive or

meritless claims. Thus, we cannot deduce that when an attorney advocates a nonabusive claim, a different result is mandated. Instead, the

Kay Court held that encouraging independent representation by prohibiting statutory awards to pro se attorney-plaintiffs furthered the

fee-shifting statute's purpose of encouraging the effective prosecution

of meritorious claims. 499 U.S. at 437. In accord with that holding,

we conclude that special circumstances bar an award of fees for services performed by an attorney-parent who represents his or her child

in IDEA proceedings.

III.

The district court's judgment is, in all respects,

AFFIRMED.

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