United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on ATTORNEY CHARLOTTE P. HODGES
MOTION FOR DEFENDANT'S [sic] ATTORNEY'S FEES &
COSTS (ECF No. 173) . The Court has reviewed the supporting,
opposing, and reply memoranda, and argument was heard on
April 29, 2019. For the following reasons, ATTORNEY CHARLOTTE
P. HODGES MOTION FOR DEFENDANT'S [sic] ATTORNEY'S
FEES & COSTS (ECF No. 173) will be denied.
case is an appeal of a due process hearing in which
Defendants Tonie and Gregory Matthews (the
"Matthews") claimed that Plaintiff Henrico County
School Board (the "School Board") was not providing
their autistic son, G.M., a free appropriate public education
("FAPE"), which is a requirement for all public
schools under the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1400, et seq.
The Matthews were not satisfied with G.M.'s progress
under the School Board's program, so they initiated a due
process hearing under IDEA. They sought the help of two
so-called "advocates," Kandise Lucas and Sa'ad
El-Amin, to advocate for private placement with the Faison
School, a school that specializes in educational programming
for students with autism. The administrative hearing officer who
presided over the due process hearing agreed with the
Matthews, holding that the School Board failed to provide
G.M. a FAPE and awarding G.M. private school placement as a
compensatory service for the School Board's failure.
permitted by IDEA, the School Board filed this action against
the Matthews, appealing the administrative hearing
officer's decision. The Matthews retained Charlotte
Hodges to be their counsel in this case, and Hodges noted her
appearance on March 15, 2018. NOTICE OF APPEARANCE (ECF No.
9). While representing the Matthews, Hodges filed various
motions, including a motion for preliminary injunction and a
motion to dismiss. Hodges also represented the Matthews as
they prepared for, and participated in, a settlement
20, 2018, during a settlement conference with Magistrate
Judge Young, it was brought to the Court's attention that
the Matthews had moved from Henrico County to New Kent
County. Hodges represented the Matthews until July 23, 2018
when the Court allowed the Matthews to terminate her
services. ORDER (ECF No. 77) . The Matthews retained new
counsel (Michael B. Gunlicks) shortly thereafter. The Court
allowed the School Board to take any depositions of, and to
subpoena any documents from, the Matthews, Lucas, El-Amin,
and Hodges related to the change in residence by the
Matthews. ORDER (ECF No. 79).
disclosed that, on March 13, 2018, the Matthews signed a
lease for their New Kent residence; that, in early May, they
began the process of moving to the New Kent residence; and
that the move was completed in mid-May. Discovery also
disclosed that the Matthews discussed with Lucas and Hodges,
the subject of a move to New Kent County. Discovery also
showed that, by December 2018, the Matthews had arranged for
New Kent County to provide funding for G.M. to attend Faison
the completion of discovery about the move to New Kent
County, the School Board filed HENRICO COUNTY SCHOOL
BOARD'S MOTION FOR SANCTIONS (ECF No. 129) against
Hodges, among others. The School Board alleged that Hodges
violated Rule 11 for signing DEFENDANTS' MOTION FOR
PRELIMINARY INJUNCTION AND PENDENTE LITE RELIEF (ECF No. 23)
(which was signed by Hodges after the Matthews had moved to
New Kent County) without investigating whether the Matthews
had moved to New Kent County after Hodges was on notice of
the possibility that the Matthews would be moving to New Kent
County. The School Board also argued that Hodges should be
sanctioned under the Court's "inherent powers"
for never disclosing that the Matthews had moved to New Kent
County. See generally MEMORANDUM IN SUPPORT OF
HENRICO COUNTY SCHOOL BOARD'S MOTION FOR SANCTIONS (ECF
No. 130) . That motion was heard on December 4, 2018. At that
hearing, Hodges was represented by Brenda Page. The Court
decided not to sanction Hodges under either theory because
the evidence did not show that she knew of the Matthews'
move, when she made filings in this case. Further, the Court
found that the Matthews' conduct, in having meetings away
from their home and in making a request to have G.M. picked
up from Tonie Matthews' work instead of her home, made it
understandable that Hodges did not know that the Matthews had
same hearing, the Court asked the parties whether the
underlying case was moot. The parties (the School Board and
the Matthews), by counsel, agreed that the underlying case
was moot and that the School Board no longer was obliged to
help pay for G.M.'s Faison placement under the IDEA.
Afterward, the Court entered an ORDER dated December 14, 2018
(ECF No. 159) dismissing the case as moot, but retaining
jurisdiction over the sanctions issues.
then filed ATTORNEY CHARLOTTE P. HODGES MOTION FOR
DEFENDANT'S [sic] ATTORNEY'S FEES & COSTS (ECF
No. 173), asking for attorney's fees and costs in the sum
of $90, 172.25. However, during the hearing on April 29,
2019, Hodges conceded that the case became moot in May 2018,
so she agreed that she is owed no more than $28, 771.10 in
attorney's fees and $223.75 in costs.
motion, Hodges argues that, because the administrative
hearing officer determined that Henrico County had denied
G.M. a FAPE, and because G.M. was enrolled at Faison School
(at the Faison School's expense) while he resided in
Henrico, Hodges is entitled to attorney's fees because
the Matthews "clearly substantially prevailed in their
Due Process Complaint." MEMORANDUM IN SUPPORT OF
ATTORNEY CHARLOTTE P. HODGES MOTION FOR DEFENDANT'S [sic]
ATTORNEY'S FEES & COSTS (ECF No. 174) at 2-3.
claim for attorney's fees fails because the request does
not comply with the statute's plain language. The statute
In any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys'
fees as part of the costs- to a prevailing party who is ...