AMENDED OPINION

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANN DOE AND JOHN DOE, parents and
next friends of TOM DOE,*
Plaintiffs-Appellants,

v.

BOARD OF EDUCATION OF BALTIMORE
                                                                       No. 98-1075
COUNTY, a Body Corporate and
Politic of the State of Maryland;
ANTHONY G. MARCHIONE, Officially,
Superintendent,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-96-3734-WMN)

Argued: October 27, 1998

Decided: December 10, 1998

Before HAMILTON and MOTZ, Circuit Judges, and BOYLE,
Chief United States District Judge for the Eastern District of North
Carolina, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Hamilton and Chief Judge Boyle joined.
_________________________________________________________________
*At the appellants' request, throughout we have substituted Ann Doe,
John Doe, and Tom Doe for their real names.
COUNSEL

ARGUED: John Doe, THE LAW FIRM OF JOHN DOE, P.A.,
Asheville, North Carolina, for Appellants. Leslie Robert Stellman,
BLUM, YUMKAS, MAILMAN, GUTMAN & DENICK, P.A., Balti-
more, Maryland, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case presents the question of whether attorney's fees are to be
awarded for the legal services performed by an attorney in obtaining
special education benefits for his child under the Individuals with Dis-
abilities Education Act. The district court held that there was no enti-
tlement to fees in these circumstances. We affirm.

I.

Tom Doe is a child eligible for special education and related ser-
vices under the Individual with Disabilities Education Act, (IDEA),
20 U.S.C.A. §§ 1400-1487 (West 1990 & Supp. 1998). His parents,
Ann Doe and John Doe, sought to have local public school authorities
provide the Lovaas behavioral modification program to Tom. After
receiving an adverse decision from a state hearing officer, the Does
appealed to the Maryland Office of Administrative Hearings. An
appeal panel of that Office found in their favor. The panel concluded
that the Lovaas program constituted an appropriate educational pro-
gram for Tom and ordered that school officials reimburse Mr. and
Mrs. Doe for their expenses in providing this program.

When the Board of Education of Baltimore County (the Board)
failed to comply with that order, Mr. Doe, an attorney, and his wife
filed this action as the "parents and next friends of" Tom Doe. The
Board and the Does ultimately agreed that the Board would reimburse
the Does in the amount of $10,421.36 for the Lovaas program and
$2,012.50 for expert witness fees in the administrative proceedings.
The Does also sought an award of attorney's fees for the legal ser-

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vices performed by Mr. Doe. The district court refused the request for
attorney's fees, finding that when an attorney represents his own child
in IDEA proceedings, the "congressional purpose in enacting the
IDEA is best served by denying the award of fees." From that deci-
sion, the Does appeal.

II.

The Does sought attorney's fees under the fee-shifting provision of
the IDEA, which has since been slightly, and immaterially, amended.
The amended statute provides 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.A. § 1415(e)(4)(B) (West Supp. 1998).

The Does maintain that the plain language of this statute permits
an award of fees here, but the Board contends that the Supreme
Court's decision in Kay v. Ehrler, 499 U.S. 432 (1991) prohibits such
an award. Kay held that a pro se plaintiff who is an attorney cannot
be awarded attorney's fees under the fee-shifting provision of the
Civil Rights Attorney's Fees Awards Act, which contains language
very similar to the IDEA provision. See 42 U.S.C.A. § 1988(b) (West
Supp. 1998) ("the court, in its discretion, may allow the prevailing
party . . . a reasonable attorney's fee as part of the costs."). The Kay
Court reasoned that the term "attorney" in the fee-shifting provision
"assumes an agency relationship, and it seems likely that Congress
contemplated an attorney-client relationship as the predicate for an
award under § 1988." Kay, 499 U.S. at 435-36.

The Court further found that "the overriding" purpose of the statute
was to obtain "independent counsel for victims of civil rights viola-
tions" to "ensur[e] the effective prosecution of meritorious claims."
Id. at 437. Permitting a pro se attorney-plaintiff to obtain fees was
held not to serve this purpose because a pro se attorney "is deprived
of the judgment of an independent third party in framing the theory

                    3
of the case, evaluating alternative methods of presenting evidence,
cross examining hostile witnesses, formulating legal arguments, and
in making sure reason, rather than emotion, dictates the proper tactical
response to unforseen developments in the court room." Id. The Kay
Court concluded:

          A rule that authorizes awards of counsel fees to pro se liti-
          gants -- even if limited to those who are members of the bar
          -- would create a disincentive to employ counsel whenever
          such a plaintiff considered himself competent to litigate on
          his own behalf. The statutory policy of furthering the suc-
          cessful prosecution of meritorious claims is better served by
          a rule that creates an incentive to retain counsel in every
          such case.

Id. at 438.

In the wake of Kay, two of our sister circuits have found the Kay
Court's rationale regarding attorney-litigants to be applicable outside
the § 1988 context; in both of these cases, the courts ruled that attor-
neys who successfully represent themselves in Freedom of Informa-
tion Act claims cannot recover fees under that statute's fee-shifting
provision. Burka v. United States Dep't of Health & Human Servs.,
142 F.3d 1286, 1290 (D.C. Cir. 1998); Ray v. United States Dep't of
Justice, 87 F.3d 1250, 1252 (11th Cir. 1996). No circuit, however, has
dealt with a Kay-based challenge to fees for services of an attorney
in successfully representing his or her own child in an IDEA claim.
The Board maintains that the attorney-parent in an IDEA case "is, in
fact, a pro se plaintiff for attorneys' fees purposes" and that Kay thus
prohibits an attorney-parent from obtaining an award of fees under the
IDEA.

The Board argues that certain statutory language supports its view
that an attorney-parent's representation of his child in IDEA proceed-
ings actually constitutes pro se representation. The IDEA undeniably
establishes numerous parental rights. Parents are included in the
"team" that determines a disabled child's appropriate "individualized
education program" under the Act. 20 U.S.C.A.§ 1414(a)(20). No
evaluation or reevaluation of a child can be made without obtaining
parental consent. Id. §§ 1414(a)(1)(C)(iii), 1415(b)(1)(c). Moreover,

                    4
"[a]ny state educational agency" that receives IDEA funds must estab-
lish . . . procedures . . . to assure that children with disabilities and
their parents or guardians are guaranteed procedural safeguards." Id.
§ 1415(a) (emphasis added). These procedural safeguards include "an
opportunity for the parents or guardian of a child with a disability to
examine all relevant records," the provision of"written prior notice
to the parents or guardian of the child" of certain information, and the
right of the "parents or guardian [to] an impartial due process hear-
ing" on complaints pertaining to the treatment of the child's case
under the Act. Id. § 1415(b). (emphasis added).

Contrary to the Board's contention, however, we do not believe
that the IDEA's provision of rights to parents means that an attorney-
parent actually represents himself when he pursues IDEA services for
his child. Plainly, the focus of the IDEA is the educational needs of
the disabled child, not the parents. State officials are charged with for-
mulation of an individualized education plan for the child, not the par-
ents. The adequacy of such a plan is determined by how appropriately
it meets the needs of the child, not the parents. Even the wording of
the IDEA fee-shifting provision supports the notion that the child is
the focus of the IDEA, by providing fees "to the parents of a child or
youth with a disability who is the prevailing party ." 20 U.S.C.A. §
1415(e)(4)(B) (emphasis added).

Though parents have some rights under the IDEA, the child, not
the parents, is the real party in interest in any IDEA proceeding. The
references to parents are best understood as accommodations to the
fact of the child's incapacity. That incapacity does not collapse the
identity of the child into that of his parents. Recognizing that parents
and children are distinct legal entities under the IDEA, the Second
and Eleventh Circuits have recently held that parents who are not
attorneys may not appear pro se in court on behalf of their children
in IDEA cases. See Wegner v. Canastota Cent. Sch. Dist., 146 F.3d
123 (2nd Cir. 1998); Devine v. Indian River County Sch. Bd., 121
F.3d 576, 581-82 (11th Cir. 1997), cert. denied , 118 S. Ct. 1040
(1998). For these reasons, we cannot agree, as the Board urges, that
Mr. Doe is acting pro se in pursuing his son's IDEA claim, in the
same fashion as Mr. Kay was in advancing his own civil rights claim.
Thus, Kay v. Ehrler does not precisely parallel this case.

                     5
Yet Kay clearly does have relevance here. After all, the central
thrust of Kay is that fee-shifting statutes are meant to encourage the
effective prosecution of meritorious claims, and that they seek to
achieve this purpose by encouraging parties to obtain independent
representation. Like attorneys appearing pro se, attorney-parents are
generally incapable of exercising sufficient independent judgment on
behalf of their children to ensure that "reason, rather than emotion"
will dictate the conduct of the litigation. Kay , 499 U.S. at 437. Cer-
tainly the danger that a child's meritorious claim will be ineffectively
prosecuted by an irrationally emotional attorney-parent is at least
equal to the danger that the meritorious claim of a pro se civil rights
plaintiff, who is also a lawyer, will be bungled without the assistance
of an independent attorney.

Indeed, although Mr. Doe obtained an excellent result for Tom --
complete reimbursement for the Lovaas program -- and although we
do not in any way denigrate his care and effort in representing his son,
this case illustrates the difficulties of encouraging inexperienced
attorney-parents, via a statutory fee award, to represent their own chil-
dren in IDEA proceedings. Because Mr. Doe failed to provide state
officials with timely notice of his proposed witness list prior to the
initial administrative due process hearing, the Does were not permit-
ted to present the testimony of those witnesses at the hearing and the
hearing examiner rejected their claim. If Mr. Doe had provided timely
notice of the witness list, all subsequent proceedings in this case
might, as the Does themselves note, have "been avoided altogether."
Brief of Appellant at 4 n.1.1 An attorney more familiar with the rele-
vant procedures might well have obtained relief for Tom more
quickly and at far less cost. Similarly, although the Does seek costs
and pre- and post-judgment interest on appeal, they did not properly
advance or preserve these rights in the district court. More experi-
enced counsel would likely have alleged the right to interest in the
complaint and sought costs pursuant to 20 U.S.C.§ 1415(e)(2).
_________________________________________________________________
1 The Does provided the Board with four, rather than the required five,
days notice of the proposed witness list. We do not suggest that the
hypertechnical insistence of the Board's attorney on five days notice is
to be applauded. Such conduct seems unnecessary and graceless when
dealing with inexperienced opposing counsel and a government program
designed to benefit disabled children. However, graceless or not, the
Board's counsel did act within his rights.

                     6
Indisputably, disabled children pursuing IDEA claims merit the
very best representation. In their brief, the Does note that

          [t]he IDEA was enacted to develop a mechanism for provid-
          ing disabled children with an opportunity to become func-
          tional in our society. No one is more likely to lead the fight
          for those children than a parent who has been scarred by a
          school district that refuses to comply with the IDEA. There
          is no reason to compound a child's handicap simply because
          his parent is an attorney.

Brief of Appellants at 9. We completely agree. Loving parents, like
the Does will of course "fight" for their children -- with or without
a statutory award of fees for their services. To permit an attorney-
parent to recover statutory fees for representing his child in IDEA
proceedings is thus not necessary to ensure a parent's efforts on
behalf of his child, but it might well lessen the chance that a disabled
child would have the benefit of legal services from an independent
third party. In this way, such a holding would "compound" the
"child's handicap simply because his parent is an attorney." Precisely
because disabled children deserve independent legal services, the
IDEA fee-shifting provision should be read to encourage parents to
obtain independent legal services. Indeed, courts must take special
care to protect the interests of children, given that an "infant is always
the ward of every court wherein his rights or property are brought into
jeopardy, and is entitled to the most jealous care that no injustice be
done to him." Wegner, 146 F.3d at 125 (quoting Johns v. County of
San Diego, 114 F.3d 874, 877 (9th Cir. 1997).

In sum, although an attorney-parent's representation of his child is
not pro se representation, such that Kay is not on "all fours" with this
case, much of the rationale articulated in Kay does apply here. That
rationale provides a clear basis for invoking the judicially created spe-
cial circumstances doctrine. In the context of other fee-shifting provi-
sions, e.g., those in 42 U.S.C. § 1988 and Title VII of the Civil Rights
Act of 1964, the Supreme Court has recognized that although a pre-
vailing party "should ordinarily recover an attorney's fee," "special
circumstances" can render "such an award unjust." See, e.g., Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting Newman v. Piggie
Park Enters. Inc., 390 U.S. 400, 402 (1968)) (§ 1988); Albemarle

                     7
Paper Co. v. Moody, 422 U.S. 405, 415 (1975) (Title VII) (dicta).
Although the Court has not discussed the special circumstances doc-
trine in connection with the IDEA fee-shifting provision, the legisla-
tive history indicates that Congress intended courts to interpret it as
they have § 1988 and Title VII. See S. Rep. No. 99-112, at 13-14
(1985), reprinted in 1986 U.S.C.C.A.N. 1798, 1803-04.

Courts have universally recognized that this "special circum-
stances" exception is very "narrowly limited." See, e.g., Bonnes v.
Long, 599 F.2d 1316, 1318 (4th Cir. 1979), overruled on other
grounds by S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.
1994). Only on rare occasions does a case present such circumstances,
see, e.g., Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1044-45
(4th Cir. 1976), and we have uncovered no case in which any circuit
has found a basis for the special circumstances exception in a situa-
tion similar to that at hand.2 However, given a parent's special and
close relationship with his or her child, we believe that Kay does pro-
vide a basis for invoking the narrow special circumstances exception
here. We note that the district judge in this case, another distinguished
district judge in this circuit, and the Indiana Supreme Court have
reached a similar conclusion. See Rappaport v. Vance, 812 F. Supp.
609 (D. Md. 1993), appeal dismissed, 14 F.3d 596 (4th Cir. 1994);
accord, Miller v. West LaFayette Community Sch. Corp., 665 N.E.2d
905 (Ind. 1996).

We recognize, of course, that other judgments could be made as to
how the policy interest in ensuring "effective prosecution of meritori-
ous claims" is best served. For example, reimbursing pro se attorney-
plaintiffs, who have prevailed in difficult, unpleasant cases when they
_________________________________________________________________
2 Prior to Kay, the Ninth Circuit suggested that determination of
whether "special circumstances" exist in an IDEA case involves exami-
nation of "two factors: (1) whether awarding fees would further the con-
gressional purpose in enacting" IDEA and "(2) the balance of the
equities." Abu-Sahyun v. Palo Alto Unified Sch. Dist., 843 F.2d 1250,
1253 (9th Cir. 1988). Neither the Supreme Court nor this court has
embraced this two-part test in subsequent IDEA cases and we decline to
do so here. This "test" contains no real standards and provides no legiti-
mate reason for departing from the usual rule of awarding reasonable
fees to prevailing plaintiffs under fee-shifting statutes.

                    8
can demonstrate that they could not obtain other representation, could
well be found to further this interest. But, nothing in Kay suggests that
the difficulty of a case or the failure to find other counsel provide a
ground for awarding fees to a prevailing pro se attorney-plaintiff.
Moreover, contrary to the Does' suggestion, the Kay Court specifi-
cally refused to base its rationale on a need to eliminate abusive or
meritless claims. Thus, we cannot deduce that when an attorney advo-
cates a nonabusive claim, a different result is mandated. Instead, the
Kay Court held that encouraging independent representation by pro-
hibiting statutory awards to pro se attorney-plaintiffs furthered the
fee-shifting statute's purpose of encouraging the effective prosecution
of meritorious claims. 499 U.S. at 437. In accord with that holding,
we conclude that special circumstances bar an award of fees for ser-
vices performed by an attorney-parent who represents his or her child
in IDEA proceedings.

III.

The district court's judgment is, in all respects,

AFFIRMED.

                     9
