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Henrico County School Board v. Matthews

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

October 2, 2019

GREGORY MATTHEWS, et al., Defendants.


          Robert E. Payne Senior United States District Judge

         This matter is before the Court on HENRICO COUNTY SCHOOL BOARD'S AMENDED MOTION FOR SANCTIONS (ECF No. 199) . The Court has reviewed the supporting, opposing, and reply memoranda; has considered the evidence adduced on March 6, 2019 and March 18, 2019; and has considered the argument presented on June 21, 2019. For the following reasons, HENRICO COUNTY SCHOOL BOARD'S AMENDED MOTION FOR SANCTIONS (ECF No. 199) (the "Amended Sanctions Motion") will be granted in part as to Kandise Lucas ("Lucas"), denied in part as to Lucas, and denied as to Tonie and Gregory Matthews (the "Matthews").


         The Amended Sanctions Motion is the final step, at least in this Court, in a proceeding that began under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (the "IDEA").

         It is therefore necessary to understand certain parts of the IDEA and the facts that have brought the parties to this point.

         A. The IDEA Provisions Involved

         Under the IDEA, students with disabilities are entitled to a Free Appropriate Education ("FAPE"). 20 U.S.C. § 1412(a)(1)(A). The FAPE is provided through an individualized educational program ("IEP"), 20 U.S.C. § 1414(d), that is to be arrived at through a collaborative process undertaken between parents and educators (referred to as an individualized education program team ("IEP Team")). 20 U.S.C. § 1414(d)(1)(A). Under 20 U.S.C. § 1414(d)(1)(B), the IEP Team may include "individuals who have knowledge or special expertise regarding the child." The IDEA provides certain procedural safeguards "with respect to the provision" of a FAPE. 20 U.S.C. § 1415(a). Among those safeguards is the right to challenge the IEP in a so-called "due process hearing." 20 U.S.C. § 1415 (f) (1) (B) (iii) . The IDEA provides that any party to that hearing (or an appeal thereof to a state educational agency) "shall be accorded [inter alia] the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities." 20 U.S.C. § 1415(h)(1) (emphasis added).

         In the vernacular of the IDEA, the "individuals with special knowledge or training with respect to the problems of children with disabilities" referred to in Section 1415(h)(1) have come to be known as "advocates." That is how the representatives in this case have been, and will continue to be, called.

         The IDEA does not specifically state whether a non-attorney advocate can represent parties in a due process hearing. In the 2003-2004 reauthorization, a house bill contained a provision stating that a party had a “right to be represented by counsel and by non-attorney advocates and to be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities." 63 Cong. Rec. H3, 495 (daily ed. Apr. 30, 2003) . However, the final bill enacted in 2004 did not contain that language. Instead, it merely reads that a party “shall be accorded (a) the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to problems of children with disabilities." 20 U.S.C. § 1415(h)(1) (emphasis added).

         In devising the implementing regulations for the IDEA, the Department of Education concluded that the IDEA was silent on whether a non-attorney advocate could represent a party to a due process hearing, meaning that the representational role of non-attorney advocates was left by the IDEA to be decided by the states. 73 Fed. Reg. 73, 017 (Dec. 1, 2008) .[1] Thusly informed by the Department of Education, the states have taken different views on the role of non-attorney advocates in due process hearings under the IDEA. Ten states prohibit lay advocates from representing parents in the due process hearings. Twelve states allow lay advocates to fill a representational role. Twenty-one states have no rules, and eight states leave the matter to the hearing officers who preside over due process hearings. See Perry A. Zirkel, Lay Advocates and Parent Experts under the IDEA, 217 West Educ. L. Rep. 19, 21 (2009).

         Virginia law allows lay advocates to represent parents in due process hearings and recites that doing so does not put the advocate afoul of the rules defining the unauthorized practice of law. Va. Code Ann § 22.1-214(c) (2019); see Va. Code Ann § 54.1-3904. However, Virginia does not define the qualifications necessary to undertake representation. Nor does Virginia regulate or review non-attorney advocates who undertake a representational role in the due process hearing under the IDEA. As this case shows, the course taken by Virginia is fraught with problems. And, in this case that approach was harmful to the parents and, more importantly, the child.

         B. The Administrative Case and the Case in This Court

         This case is an appeal from a decision of an administrative hearing officer in a due process hearing in which the Matthews claimed that Henrico County School Board (the "School Board") was not providing their autistic son, G.M., a FAPE. The Matthews initiated the due process hearing because they were not satisfied with G.M.'s progress under the School Board's IEP. To that end, the Matthews sought the help of two advocates, Lucas and Sa'ad El-Amin ("El-Amin") to file, and to advise during, the due process hearing with the goal of having their son placed in the Faison School, a private school which specializes in educational programming for students with autism.[2] The administrative hearing officer who presided over the due process hearing agreed with the Matthews, holding that the School Board had failed to provide G.M. a FAPE and awarding G.M. private school placement as a compensatory-service for the School Board's failure to provide G.M. with a FAPE. Following the hearing officer's decision, the Faison School allowed G.M. to attend for free, which he did from January 28, 2018 to May 11, 2018. The School Board never paid for G.M. to attend Faison.

         As permitted by IDEA, the School Board appealed the administrative hearing officer's decision by filing this action. The Matthews then retained Charlotte Hodges ("Hodges") as their counsel in this case. However, the record shows that Lucas stayed in the picture and continued to give advice to the Matthews about all aspects of the case (notwithstanding that there is no authority allowing an advocate to participate in or direct litigation in federal court).[3] The record also shows that Lucas undercut Hodges in her representation of the Matthews and ultimately convinced the Matthews to discharge Hodges.

         The Sanctions Motion against Lucas and the Matthews was prompted in large part by the fact that, during this case, the Matthews, assertedly with knowledge and encouragement of Lucas moved out of Henrico County and into New Kent County without disclosing that fact to the School Board or the Court. According to the School Board, that move had the effect of relieving it of any obligation for G.M.'s education under the IDEA. Thus, it is important to understand the facts surrounding the move.

         The record shows that, on March 13, 2018, three weeks after this action was filed, [4] the Matthews signed a lease in New Kent County that became effective on May 1, 2018. However, the record also shows that, in February 2018, the Matthews had begun to take steps toward moving from Henrico County to New Kent County. See March 6, 2019 Tr. (ECF No. 197) at 90, 112 (testimony of Gregory and Tonie Matthews showing that they had decided to move in February 2018) . On April 5, 2018, the Matthews, with Hodges as counsel, filed their Answer to the Complaint therein stating that they were residents of Henrico County. Neither in their Answer nor in any other way did the Matthews mention that, earlier in February, they had decided to move to New Kent County. Nor did they disclose that, in March, they had signed a lease on a house in New Kent County. See id. at 90-92.

         Sometime during May 2018, the Matthews moved to New Kent County and started utility services at their New Kent County residence. In May 2018, the Matthews also changed their cell phone service, used their New Kent County address for the purpose of initiating that cell phone service, and canceled utilities at the Henrico County address. Discovery relating to the sanctions issue also disclosed that the Matthews discussed the subject of a move to New Kent County with both Lucas and Hodges. See id. at 117-122, 124-127.

         On June 4, 2018, without the Matthews' knowledge, Lucas filed another due process complaint for the Matthews (the seventh one that she filed related to G.M., which were all related to the same subject matter) in which the address listed for the Matthews was their Henrico residence. See id. at 108-09; March 18, 2019 Tr. (ECF No. 194) at 259-74, 472-73. On June 5, 2018, the Matthews filed in this Court a motion for a preliminary injunction, asking the Court to require the School Board to comply with the hearing officer's order and to pay for G.M.'s placement at the Faison School. DEFENDANTS' MOTION FOR PRELIMINARY INJUNCTION AND PENDENTE LITE RELIEF (ECF No. 23).

         On June 14, 2018, Tonie Matthews sent a text to Lucas that includes information that the Matthews “[we]re moving" to New Kent County and that Tonie Matthews did not "want to be caught up in them [the School Board] finding out that we are moving." June 14, 2018 Text Messages Between Tonie Matthews and Lucas (ECF No. 134-9) . That text also showed that the Matthews and Lucas knew that there was a possibility that a move might affect this action. See id. (Tonie Matthews stating “I think that's enough to put the lawsuit through[.] I'm sure they'll be glad that they won't have to pay for Faison and we're moving").

         Lucas responded that, even if the Matthews moved, the School Board would still have to pay for G.M.'s education at Faison. Lucas also told the Matthews on several other occasions that moving out of Henrico County would have no effect on G.M.'s placement at the Faison School. Also, after the Matthews had moved to New Kent County, Lucas encouraged them to file DEFENDANTS' MOTION FOR PRELIMINARY INJUNCTION AND PENDENTE LITE RELIEF (ECF No. 23) to require the School Board to pay for G.M.'s placement at the Faison School. March 6, 2019 Tr. (ECF No. 197) at 130-31, 147.

         On July 12, 2018, after conferring at the Court's urging, the Matthews and the School Board signed an interim agreement, pursuant to which the School Board would pay for G.M.'s education at the Faison School in the future until this action was resolved. The interim agreement thereby eliminated the need for a temporary injunction. It also provided: (1) for mediation of the case on the merits before a Magistrate Judge on August 13, 2018; and (2) for a stay of this action pending that mediation (except that the Matthews were to produce certain information before the mediation).

         Thereafter, the Magistrate Judge rescheduled the mediation for July 20, 2019. In that court-ordered mediation conference, the School Board told the Magistrate Judge that it had just learned that the Matthews were now living in New Kent County, and that they had lived there since sometime in May. Hodges (the Matthews7 attorney at the time) said she knew nothing about this.

         On July 23, 2018, the Matthews filed a letter with the Court stating that: (1) they were disappointed that Hodges had not brought to the Court's attention that they were considering moving to New Kent County; (2) Hodges had called the Matthews to say that she was sorry and that she had forgotten about a text message sent to her by Tonie Matthews; and (3) that Hodges would no longer be their counsel in this case. Letter dated July 22, 2018 (ECF No. 78) at 1-2. Lucas helped write the July 23 letter, and she advised the Matthews to discharge Hodges. The Matthews then filed a second letter asking the Court to give them extra time to find an attorney. Letter dated July 25, 2018 (ECF No. 87). That request was granted; and the Matthews retained new counsel (Michael B. Gunlicks, Esq.) shortly thereafter.

         The School Board took the view that it was not obligated to provide any service to G.M. because its obligations under the IDEA ran only to residents of Henrico County. Therefore, upon learning that the Matthews had moved, the School Board requested to conduct limited discovery on the topic of the move, and to file any motions related to that revelation. That request was granted and the School Board was allowed to take depositions of, and to subpoena any documents from, the Matthews, Lucas, El-Amin, and Hodges on the topic of the change in residence by the Matthews. ORDER dated July 23, 2018 (ECF No. 79).

         After the completion of that discovery, the School Board filed HENRICO COUNTY SCHOOL BOARD'S MOTION FOR SANCTIONS (ECF No. 129) against Lucas and the Matthews, among others. The Court heard that motion on December 4, 2018 and held that Hodges and El-Amin would not be sanctioned. The Court advised Lucas that the charges being made against her in the School Board's motion were serious, and asked Lucas if she would like to retain counsel, to which Lucas responded: “yes." Further proceedings on the motion for sanctions were delayed until after Lucas had retained counsel.

         At the hearing on December 4, 2018, the Court asked the parties whether this case was moot because of the Matthews' move. Then, and in a follow-up telephone conference held on December 12, 2018, the parties agreed that this case was moot. Thereafter, the Court entered an ORDER dated December 14, 2018 (ECF No. 159), denying HENRICO COUNTY SCHOOL BOARD'S MOTION FOR JUDGMENT (ECF No. 131) as moot and thereupon dismissing the case as moot. See ORDER dated December 14, 2018 (ECF No. 159) . However, the Court retained jurisdiction for the limited purpose of deciding whether the Matthews or Lucas should be sanctioned. See ORDER dated December 14, 2018 (ECF No. 159).[5] Thereafter, the School Board filed the Amended Sanctions Motion. On March 6 and March 18, 2019, the Court held evidentiary hearings on that aspect of the School Board's motion for sanctions. See generally March 6, 2019 Tr. (ECF No. 197); March 18, 2019 Tr. (ECF No. 194). During those hearings, the following witnesses testified: Lucas; the Matthews; Donice Davenport, the School Board's director of exceptional education; Dr. Crawford, another special education advocate; and Dr. Spencer, who was an expert for the Matthews in G.M.'s due process hearing.


         A. Legal Standard

         In the Amended Sanctions Motion, the School Board, invoking the Court's inherent powers, asks that Lucas and the Matthews be sanctioned by being required to pay the School Board's attorneys' fees.[6] The burden is on the moving party to show entitlement to attorneys' fees as a sanction when sought pursuant to the Court's inherent powers. Stradtman v. Republic Servs., Inc., 121 F.Supp.3d 578, 581 (E.D. Va. 2015). The Fourth Circuit has instructed that the inherent power to sanction "must be exercised with the greatest restraint and caution, and then only to the extent necessary," because that power is not regulated by Congress. United States v. Shaffer Equip. Co., 11 F.3d 450, 461 (4th Cir. 1993) . In Shaffer, the Fourth Circuit held that, if a court is called upon to use its inherent power to dismiss a case, the Court must consider the following factors:

(1) the degree of the wrongdoer's culpability; (2) the extent of the client's blameworthiness if the wrongful conduct is committed by its attorney, recognizing that we seldom dismiss claims against blameless clients; (3) the prejudice to the judicial process and the administration of justice; (4) the prejudice to the victim; (5) the availability of other sanctions to rectify the wrong by punishing culpable persons, compensating harmed persons, and deterring similar conduct in the future; and (6) the public interest.

Id. at 462-63.

         However, in Shaffer, the Court of Appeals did not specify when and how a court should use its inherent powers to impose sanctions other than dismissal. But, the Supreme Court has said that a court has the inherent power to impose sanctions-including attorneys' fees-for bad-faith conduct. Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) . The Supreme Court also made clear that "the inherent power extends to a full range of litigation abuses." Id. at 46. Cham ...

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