United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
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").
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").
therefore necessary to understand certain parts of the IDEA
and the facts that have brought the parties to this point.
The IDEA Provisions Involved
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).
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.
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).
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)
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).
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 Administrative Case and the Case in This Court
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. 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.
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). The record also shows that Lucas undercut
Hodges in her representation of the Matthews and ultimately
convinced the Matthews to discharge Hodges.
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.
record shows that, on March 13, 2018, three weeks after this
action was filed,  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.
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.
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).
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").
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.
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).
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
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.
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).
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
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). 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.
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. 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
Id. at 462-63.
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 ...