United States v. 2006-08-23 | 04-56263 | FORD VLONG BEACH UNIFIED | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 WHITNEY FORD; RODNEY FORD,
Plaintiffs-Appellants, No. 04-56263
v. D.C. No.
 CV-04-02712-RLONG BEACH UNIFIED SCHOOL
DISTRICT, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted March 9, 2006*
Pasadena, California
Filed August 23, 2006
Before: Dorothy W. Nelson, Sidney R. Thomas, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge D. W. Nelson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
10055

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COUNSEL
Tania L. Whiteleather, Lakewood, California, for the appel-
lants.
Adam J. Newman and Marlon C. Wadlington, Cerritos, Cali-
fornia, for the appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Whitney Ford (“Whitney”) and her father, Rodney Ford
(“Rodney”), appeal the district court’s order dismissing their
request pursuant to the Individuals with Disabilities Education
Act (“IDEA”), 20 U.S.C. §§ 1400-1487, for attorneys’ fees
related to legal services provided by Whitney’s mother and
Rodney’s wife, Tania Whiteleather. We have jurisdiction
under 28 U.S.C. § 1291 and must address an issue of first
impression in this circuit: Is a parent performing legal ser-
vices for her own child entitled to attorneys’ fees pursuant to
the IDEA? We hold that attorney-parents are not entitled to
attorneys’ fees for the representation their children in IDEA
proceedings.1
1Because we conclude that the IDEA does not permit attorney-parents
to recover attorneys’ fees, we need not address whether the Fords are the
“prevailing parties.” Additionally, the Supreme Court has recently ruled
that prevailing parents may not recover fees for “services rendered by
experts in IDEA actions.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Mur-
phy, 126 S. Ct. 2455, 2457 (2006). Thus, we need not consider the Fords’
claims for expert fees.
10057 FORD v. LONG BEACH UNIFIED SCHOOL DISTRICT

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I
Whitney is a student in the Long Beach Unified School
District (the “School District”) suffering from a series of anxi-
ety problems. Whitney also experiences difficulty remember-
ing dates or facts and completing written and mathematics
assignments. These problems have constantly and severely
affected her performance in school. The instant case arises out
of a series of disputes over Whitney’s educational needs
between Whitney, her father Rodney Ford, and her mother
and attorney Tania L. Whiteleather on one side, and the
School District on the other.
In 1999, Whitney was placed in a residential treatment cen-
ter in Utah pursuant to an agreement with the School District
regarding her Individualized Education Program (“IEP”).
Sometime later, the treatment center suggested that Whitney
return to her permanent residence in Southern California.
At an IEP meeting on May 31, 2000, the School District
and the Fords agreed to return Whitney to her home. The IEP
team also determined that Whitney would receive at-home
academic instruction through the School District’s “home/
hospital” program, as well as services from Lindamood-Bell
Learning Processes, an organization offering specialized edu-
cational instruction.
Before Whitney began her new program, the School Dis-
trict reversed course. On June 14, 2000, it decided that the
agreed-upon services from Lindamood-Bell Learning Pro-
cesses were unnecessary and determined that Whitney should
be returned to the residential treatment center in Utah. The
Fords objected, and Rodney filed a due process hearing
request, on Whitney’s behalf, with the California Special Edu-
cation Hearing Office (“SEHO”). On August 24, 2000, the
SEHO issued an order mandating the enforcement of the
agreement reached between the Fords and the School District
at Whitney’s May 31, 2000, IEP meeting.
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The School District challenged the SEHO’s decision by fil-
ing a motion for a temporary restraining order in state court.
The state court granted the School District’s motion on
November 7, 2000, and ordered that Whitney be returned to
the residential treatment facility. The Fords appealed, and the
parties reached a settlement agreement on April 17, 2001.
That agreement nullified the November 7, 2000, state court
order, provided that the School District would fund the ser-
vices originally promised to Whitney at the May 31, 2000,
IEP meeting, and reimbursed the Fords for various costs asso-
ciated with Whitney’s education.
In 2003, after the School District prevented Whitney from
enrolling in a local high school, Rodney filed a second due
process hearing request with the SEHO.2 The parties eventu-
ally entered into a settlement agreement on August 18, 2003.
This agreement provided that Whitney would be enrolled at
a local high school and would receive math instruction from
Lindamood-Bell Learning Processes. The School District also
agreed to reimburse the Fords for prior visits to the residential
placement center in Utah.
On April 29, 2004, Whitney and Rodney filed a complaint
in the district court pursuant to the IDEA, seeking to recover
fees related to their settlements with the School District. The
School District filed a motion to dismiss for failure to state a
claim, and on June 28, 2004, the district court dismissed the
complaint. This timely appeal followed.
II
We review de novo a district court’s dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
2In order to accommodate the schedule of the School District’s counsel,
the matter was dismissed without prejudice via an agreement reached on
January 5, 2003. Rodney subsequently filed a third due process hearing
request.
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12(b)(6). See Decker v. Advantage Fund, Ltd., 362 F.3d 593,
595-96 (9th Cir. 2004). Therefore, we must ask whether, “as-
suming all facts and inferences in favor of the nonmoving
party, it appears beyond doubt that [Whitney and Rodney] can
prove no set of facts to support [their] claims.” Libas Ltd. v.
Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003).
III
[1] Before reaching the central issue in this case—whether
the IDEA authorizes attorneys’ fees—we address briefly the
School District’s argument that the Fords’ claim should be
dismissed for failure to abide by the claim presentment
requirement of the California Tort Claims Act.3 That law
poses no obstacle to the Fords’ claim for attorneys’ fees
because—as we have already explained—state claim present-
ment requirements cannot be applied to federal civil rights
actions. See Stanley v. Trustees of the Cal. State Univ., 433
F.3d 1129, 1135 (9th Cir. 2006); see also Felder v. Casey,
487 U.S. 131, 140 (1988) (reasoning that “the absence of any
notice-of-claim provision is not a deficiency requiring the
importation of such statutes into the federal civil rights
scheme”).
IV
Next, we must determine whether the IDEA authorizes
attorneys’ fees for attorney-parents.4 We join three other cir-
cuits in concluding that it does not. See S.N. ex rel. J.N. v.
Pittsford Cent. Sch. Dist., 448 F.3d 601 (2nd Cir. 2006);
3The relevant provision provides that “no suit for money or damages
may be brought against a [local] public entity . . . until a written claim
therefor has been presented to the public entity. . . .” Cal. Gov’t Code
§ 945.4.
4The Fords also argue that they are entitled to attorneys’ fees pursuant
to 42 U.S.C. § 1988, but that statute does not provide for fees related to
a successful IDEA claim. See 42 U.S.C. § 1988.
10060 FORD v. LONG BEACH UNIFIED SCHOOL DISTRICT

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Woodside v. Sch. Dist. of Phila. Bd. Of Educ., 248 F.3d 129
(3rd Cir. 2001); Doe v. Bd. of Educ. of Balt. County, 165 F.3d
260 (4th Cir. 1998).
A
[2] In interpreting the IDEA, like any other statute, we turn
first to its plain meaning. United States v. Stewart, 420 F.3d
1007, 1020 (9th Cir. 2005). The version of the IDEA applica-
ble at the time of the district court’s decision states 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.
§ 1415 (e)(4)(B) (2004).5 Whiteleather is an attorney, so
applying the plain meaning of the provision, the Fords appear
to be entitled to fees. However, the established interpretation
of language similar to that used in § 1415 strongly suggests
that the Fords are not entitled to attorneys’ fees.
[3] In particular, we focus on 42 U.S.C. § 1988,6 a fee-
shifting provision “virtually identical” to that before us. See
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S. Ct.
2455, 2462 (2006). In Kay v. Ehrler, 499 U.S. 432 (1991), the
Supreme Court determined that the “overriding statutory con-
cern” of § 1988 was to ensure that victims of civil rights vio-
lations benefit from “the judgment of an independent third
5Although the IDEA was amended in 2004, see Individuals with Dis-
abilities Education Improvement Act of 2004, Pub. L. No. 108-446, 118
Stat. 2647, the amended attorneys’ fees provision is identical to the ver-
sion of the IDEA applicable at the time of the district court’s decision.
Compare 20 U.S.C. § 1415(e)(4)(B) (2004), with 20 U.S.C. § 1415(i)(3)
(B)(i) (2005) (“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 the parent of a child with a disability.
. . .”).
6Section 1988 provides that “the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee.” 42 U.S.C. § 1988(b).
10061 FORD v. LONG BEACH UNIFIED SCHOOL DISTRICT

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party [to] mak[e] sure that reason, rather than emotion, dic-
tates the proper tactical response to unforeseen developments
in the courtroom.” Kay, 499 U.S. at 437 (emphasis added).7
Consequently, the Supreme Court concluded that an attorney
appearing pro se was not entitled to fees under § 1988.
[4] We can discern no reason—either in the “intention of
Congress . . . [or] in the purpose, history and overall design
or context of the statute,” Perez-Arellano v. Smith, 279 F.3d
791, 794 (9th Cir. 2002)—to interpret the IDEA inconsis-
tently with § 1988. See Doe, 165 F.3d at 264 (noting that “the
legislative history indicates that Congress intended courts to
interpret [the IDEA] as they have § 1988 and Title VII”); see
also Northcross v. Bd. of Ed. of Memphis City Sch., 412 U.S.
427, 428 (1973) (stating that similar language in different stat-
utes is a “strong indication” that the statutes are to be inter-
preted similarly).
[5] Like an attorney appearing pro se, a disabled child rep-
resented by his or her parent does not benefit from the judg-
ment of an independent third party. Indeed, “the danger of
inadequate representation is as great when an emotionally
charged parent represents his minor child as when the parent
represents himself.” Woodside, 248 F.3d at 131 (citation omit-
ted); see also Doe, 165 F.3d at 263 (“[A]ttorney-parents are
generally incapable of exercising sufficient independent judg-
ment on behalf of their children to ensure that ‘reason, rather
than emotion’ will dictate the conduct of the litigation.”) (cita-
tion omitted). Therefore, we agree with our sister circuits that
7The Supreme Court also focused on the word attorney, which assumes
an agency relationship. Kay, 499 U.S. at 435-36. Although an attorney-
parent acts on behalf of her child, we recognize that the relationship can-
not be analogized readily to typical agency relationships. See RESTATEMENT
(THIRD) OF AGENCY § 1.01 cmt. c (noting standard examples: “employer
and employee, corporation and officer, client and lawyer, and partnership
and general partner”); id. cmt. d (emphasizing that “agency is a consensual
relationship . . . . requir[ing] that an agent-to-be and a principal-to-be con-
sent to their association with each other”).
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“the better rule is one which encourages parents to seek inde-
pendent, emotionally detached counsel for their children’s
IDEA actions.” Woodside, 248 F.3d at 131; see also J.N. v.
Pittsford Cent. Sch. Dist., 448 F.3d at 604; Doe, 165 F.3d at
263. Accordingly, the Fords are not entitled to attorneys’ fees
because Whiteleather, Whitney’s legal counsel, is also Whit-
ney’s mother.
We recognize that, on some occasions, attorney-parents
will provide independent, reasoned representation to their
children. Given the underlying results, we can only conclude
that Whiteleather “obviously handled h[er] professional
responsibilities in this case in a competent manner.” Kay, 499
U.S. at 435. Nevertheless, we are convinced that our rule—
which presumes irrefutably that parents and guardians are
always unable to provide independent, dispassionate legal
advice—will better serve Congress’ intentions.
[6] Just as in Kay, awarding attorneys’ fees to the Fords
would create a disincentive to employ counsel whenever a
parent or guardian considered herself competent to litigate on
behalf of her child. See Kay, 499 U.S. at 438. “The statutory
policy of furthering the successful prosecution of meritorious
claims is better served by a rule that creates an incentive to
retain [independent] counsel in every such case.” Id.
V
For the foregoing reasons, the district court’s dismissal of
this case is
AFFIRMED.
10063 FORD v. LONG BEACH UNIFIED SCHOOL DISTRICT

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