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Henrico County School Board v. Matthews

United States District Court, E.D. Virginia, Richmond Division

May 20, 2019

GREGORY MATTHEWS, et al., Defendants.


          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on SA'AD EL-AMIN'S MOTION FOR SANCTIONS (ECF No. 164) (the "Motion") . The Court has reviewed the supporting, opposing, and reply memoranda, and argument was heard on April 29, 2019. For the following reasons, the Motion will be denied.


         This case is an appeal by the Henrico County School Board (the "School Board") from an adverse ruling by an administrative hearing officer in a so-called "due process" hearing brought under the Individuals with Disabilities Education Act ("IDEA") by Tonie and Gregory Matthews (the "Matthews") on behalf of their son, G.M. The administrative hearing officer held that the School Board failed to provide G.M. a free appropriate public education ("FAPE") and awarded G.M. private school placement as a compensatory service for the School Board's failure.

         Sa-ad El-Amin is a non-party to this case. He previously was an "advocate," along with Kandise Lucas, in the due process hearing brought by the Matthews under IDEA. He is a disbarred lawyer, and thus may neither practice law nor give legal advice. However, advocates, like El-Amin, can provide assistance in special education due process hearings under 20 U.S.C. § 1414(d)(1)(B)(vi) of IDEA (which provides that members of the child's "individualized education program team" can include "individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate") and Va. Code Ann. § 22.1-214 (which says "parents . . . shall have the right to be represented by legal counsel or other representative before such hearing officer[s]."). Representation in those hearings by advocates does not constitute the practice of law because the text of Va. Code Ann. § 22.1-214 makes representation in these hearings an explicit exception to the general rule that persons not authorized as attorneys cannot practice law. See id.; Va. Code Ann. § 54.1-3904. Neither IDEA nor Virginia law authorizes these advocates to represent the parents once the matter is appealed to federal court. See 20 U.S.C. § 1414(d)(1)(B)(vi) (stating that an individual who has knowledge or special expertise regarding the child can be part of the individualized education program team, but nowhere saying that advocates can represent the parents after they are represented by legal counsel); Va. Code Ann. § 22.1-214 (stating that acting as an advocate in a due process hearing is an exception to Virginia's law against the unauthorized practice of law) . Further, only licensed lawyers admitted to practice may represent a party to a case that is filed in this Court. Local Civil Rule 83.1(A), (B), (D), (F), (H).

         During the course of this case, the parties were required to meet with a Magistrate Judge to discuss settlement. That occurred on July 20, 2018. During the settlement conference, indeed, well into it and after many substantive agreements had been reached, it was disclosed that, during the pendency of the case, the Matthews and G.M. had relocated from Henrico County to New Kent County and that New Kent County was to provide G.M. with an education at the Faison School. The Matthews signed a lease for the New Kent property on March 13, 2018, started to move as early as May, and finished the move by mid-May.

         The settlement talks immediately collapsed because the School Board considered that, under IDEA, it no longer was obligated to provide a FAPE to G.M. for the reason that he was no longer a resident of Henrico County. Thereafter, upon agreement of the parties, by counsel, the case was dismissed as moot. The School Board then moved for sanctions against the Matthews, Lucas, and El-Amin. After the Court denied the School Board's motion for sanctions against El-Amin, he filed the pending Motion against the School Board as well as against Reed Smith LLP, the School Board's law firm, and against Kathleen Mehfoud, Alison Toepp, and LaRana Owens, lawyers who work at Reed Smith.


         In the Motion, El-Amin raises two arguments for why the School Board should be sanctioned. First, he argues that the School Board knew that its argument that the Matthews' move out of Henrico County mooted the case was a "bogus argument." Second, he says that the School Board "filed a completely groundless sanction's [sic] motion against [him]." ECF No. 165 at 4. As discussed below, neither argument has merit.

         1. The Allegedly "Bogus Argument"

         The "bogus argument" that El-Amin refers to is the School Board's position that it no longer had to provide a FAPE, which is a requirement for all public schools under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq., because the Matthews' moved from Henrico County to New Kent County sometime in May 2018. That fact was not made known to the Court and was not acknowledged by the Matthews to the School Board until well into the settlement conference on July 20, 2018.

         On December 4, 2018, the Court held a hearing on the School Board's sanctions motion. During that hearing, the Court asked the parties whether the underlying case was moot, based upon the School Board's contention that it was in its briefing related to its motion for sanctions and its motion for judgment. MEMORANDUM IN SUPPORT OF HENRICO COUNTY SCHOOL BOARD'S MOTION FOR SANCTIONS (ECF No, 130) at 3; MEMORANDUM IN SUPPORT OF HENRICO COUNTY SCHOOL BOARD'S MOTION FOR JUDGMENT (ECF No. 132) at 3. The parties agreed that the case was indeed moot. Afterward, the Court entered an ORDER dated December 14, 2018 (ECF No. 159) dismissing the case as moot.

         El-Amin argues that the fact of the move does not alter the obligation of the School Board to pay for G.M.'s attendance at the Faison School, pointing to cases that do not apply here. And, he says the School Board should be sanctioned for arguing to the contrary, even though, as previously stated, all parties agreed that the move made the case moot. El-Amin was not a party and has no standing to argue otherwise, much less to ask for sanctions. Thus, his sanctions motion on this theory will be denied.

         2. The Allegedly "Completely Groundless" ...

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