Nader et al v. St. Tammany Parish School Board, No. 2:2018cv03861 - Document 40 (E.D. La. 2019)

Court Description: ORDER AND REASONS: For the foregoing reasons as set forth in the document, defendant's 27 motion for summary judgment is GRANTED and plaintiffs' 19 motion for summary judgment is DENIED. Plaintiffs' complaint is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 5/29/2019. (mm)
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Nader et al v. St. Tammany Parish School Board Doc. 40 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BENJ AMIN NADER, a m inor child, by and with his parents, ET AL. CIVIL ACTION VERSUS NO. 18-3861 ST. TAMMANY PARISH SCHOOL BOARD SECTION “R” (3) ORD ER AN D REASON S Before the Court are the parties’ dueling m otions for sum m ary judgm ent on plaintiffs’ claim for attorneys’ fees under the Individuals with Disabilities Education Act (IDEA). The Court finds that plaintiffs are not entitled to attorneys’ fees under the IDEA. It therefore grants defendant’s m otion for sum m ary judgment and denies plaintiffs’ m otion. I. BACKGROU N D A. Th e ID EA This case arises out of an IDEA com plaint and due process hearing against defendant St. Tam m any Parish School Board. 1 The IDEA “is a Spending Clause statute that seeks to ensure that ‘all children with 1 R. Doc. 19-2 at 2 ¶ 5; R. Doc. 21-1 at 1 ¶ 5. Dockets.Justia.com disabilities have available to them a free appropriate public education.’” Schaffer v. W east, 546 U.S. 49, 51 (20 0 5) (quoting 20 U.S.C. § 140 0 (d)(1)(A)). To receive federal funding under the Act, each state m ust com ply with certain conditions, including procedural safeguards set forth in § 1415. See 20 U.S.C. § 1412(a), (a)(6)(A). One of these conditions is that each state m ust allow “any party to present a com plaint . . . with respect to any m atter relating to the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate public education to such child.” Id. § 1415(b)(6)(A). If the m atter cannot be resolved through an inform al m eeting, com plaining parents have a right to an “im partial due process hearing” conducted by a state or local educational agency, as provided by state law. Id. § 1415(f)(1)(A), (f)(B)(ii). The IDEA also perm its a prevailing party in that due process hearing to recover its attorneys’ fees by bringing a subsequent action in federal court. See id. § 1415(i)(3). B. Factu al Backgro u n d Plaintiff Benjam in Nader is a student with disabilities in the St. Tam m any Public School System, and the son of plaintiffs J am es and Michelle Nader. 2 On October 20 , 20 17, J ames and Michelle Nader filed a special education due process request, pursuant to the IDEA and Louisiana’s 2 R. Doc. 19-2 at 1 ¶¶ 1-2; R. Doc. 21-1 at 1 ¶¶ 1-2. 2 im plem enting regulations, to determ ine whether defendant’s actions or inactions violated Benjam in’s rights to a free appropriate public education. 3 A hearing on this request was conducted from February 19 to 22, 20 18, before Adm inistrative Law J udge William H. Cooper, III. 4 J ames Nader served as lead counsel during these adm inistrative proceedings. 5 J ames Nader is a practicing attorney, licensed in Louisiana, Texas, and Oklahom a, and is a shareholder and director at the law firm of Lobm an, Carnahan, Batt, Angelle & Nader in New Orleans. 6 Sarah Didlake, an associate attorney at Lobman, Carnahan, Batt, Angelle & Nader, also provided legal services in connection with Benjam in’s adm inistrative proceeding. 7 On March 12, 20 18, J udge Cooper issued a written Decision and Order on the due process request. 8 He held that defendant had denied Benjam in “a free and appropriate public education by segregating him and not accom m odating or m odifying his school work or study guides in a m anner 3 R. Doc. 19-2 at 2 ¶ 5; R. Doc. 21-1 at 1 ¶ 5; R. Doc. 19-13. R. Doc. 19-5 at 1. 5 R. Doc. 28-1 at 2 ¶ 5; R. Doc. 19-7 at 2 (affidavit of J ames Nader). 6 R. Doc. 19-7 at 1. 7 See R. Doc. 19-8 at 1 (affidavit of Sarah Didlake); R. Doc. 19-10 (billing records from Lobm an, Carnahan, Batt, Angelle & Nader, indicating that Didlake billed tim e for services provided in connection with the adm inistrative proceedings). 8 See R. Doc. 19-5. 3 4 reasonably calculated to enable him to receive educational benefits.”9 J udge Cooper ordered defendant to provide Benjam in with curriculum specialists in social studies and science who would, in a tim ely manner, “accom m odate and m odify each week’s school work and study guides.”10 On April 11, 20 18, plaintiffs filed this com plaint, stating that as the prevailing parties in the adm inistrative proceedings, they are entitled to attorneys’ fees under the IDEA. 11 Plaintiffs and defendants now both m ove for sum m ary judgment on plaintiffs’ claim . 12 II. LEGAL STAN D ARD Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & 9 10 11 12 Id. at 3. Id. at 19. R. Doc. 1. R. Doc. 19; R. Doc. 27. 4 Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the nonm oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal citation om itted). The nonm oving party can then defeat the motion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or by “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. 5 If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by pointing out that the evidence in the record is insufficient with respect to an essential element of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION The IDEA states that “[i]n any action or proceeding brought under this section, the court, in its discretion, m ay award reasonable attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). Defendant does not contest that the Naders were the “prevailing party” in the adm inistrative proceeding. The 6 parties instead dispute whether “a prevailing party who is [a] parent” m ay be awarded attorneys’ fees when that parent served as his child’s lead counsel. The parties further dispute whether plaintiffs can recover attorneys’ fees in connection with Didlake’s legal services. A. Jam e s N ad e r The Second, Third, Fourth, and Ninth Circuits are the only circuits that have addressed whether an attorney-parent who appeared on his child’s behalf in an IDEA proceeding can recover attorneys’ fees as a prevailing party. See Ford v. Long Beach Unified Sch. Dist., 461 F.3d 10 87 (9th Cir. 20 0 6); S.N. ex rel. v. Pittsford Cent. Sch. Dist., 448 F.3d 60 1 (2d Cir. 20 0 6); W oodside v. Sch. Dist. Of Phila. Bd. of Educ., 248 F.3d 129 (3d Cir. 20 0 1); Doe v. Bd. of Educ. of Balt. Cty ., 165 F.3d 260 (4th Cir. 1998). Each held that the attorney-parent could not recover attorneys’ fees. Id. No court in this district has addressed this question. In Doe, the Fourth Circuit grounded its decision in an application of Kay v. Ehrler, 499 U.S. 432 (1991). In Kay , the Supreme Court 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, 42 U.S.C. § 1988(b). See 499 U.S. at 437. The Supreme Court reasoned that the “overriding statutory concern” in the fee-shifting provision was to “obtain[] 7 independent counsel for victim s of civil rights violations.” Id. According to the court: A rule that authorizes awards of counsel fees to pro se litigants— even if lim ited to those who are m em bers of the bar—would create a disincentive to employ counsel whenever such a plaintiff considered himself com petent to litigate on his behalf. The statutory policy of furthering the successful prosecution of m eritorious claims is better served by a rule that creates an incentive to retain counsel in every such case. Id. at 438. The Doe court began by noting that the fee shifting statute at-issue in Kay was worded sim ilarly to the attorneys’ fees provision in the IDEA at the tim e Doe was decided. 13 Doe, 165 F.3d at 262; com pare 42 U.S.C. § 1988(b) (“the court, in its discretion, m ay allow the prevailing party . . . a reasonable attorney’s fee as part of the costs”), w ith 20 U.S.C. § 1415(e)(4)(B) (20 0 4) (“the court, in its discretion, m ay 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”). The court then acknowledged that Kay ’s holding was not directly applicable to the IDEA’s attorneys’ fees provision, because attorney-parents in IDEA adm inistrative proceedings were not litigating pro 13 The IDEA attorneys’ fees provision was amended in 20 0 4 to the current text, which controls this action. See Individuals with Disabilities Education Im provem ent Act of 20 0 4, Pub. L. No. 10 8– 446, 118 Stat. 2647. That am endment became effective on J uly 1, 20 0 5. See id. 8 se. See Doe, 165 F.3d at 263 (“Though parents have some rights under the IDEA, the child, not the parents, is the real party in interest in any IDEA proceeding.”). But the court nonetheless reasoned that Kay “ha[d] relevance,” because “[l]ike attorneys appearing pro se, attorney-parents are generally incapable of exercising sufficient independent judgm ent on behalf of their children to ensure that ‘reason, rather than em otion[,]’ will dictate the conduct of the litigation.” Id. (quoting Kay , 499 U.S. at 437). The Fourth Circuit thus concluded that the reasoning in Kay applied to the IDEA attorneys’ fees provision and that attorney-parents were barred from recovering attorneys’ fees under the statute. Id. The Second, Third, and Ninth Circuits sim ilarly found that although attorney-parents in IDEA proceedings were not litigating pro se, the reasoning in Kay was still applicable. They held that attorney-parents were therefore categorically barred from recovering attorneys’ fees. See Ford, 461 F.3d at 10 91 (“Like an attorney appearing pro se, a disabled child represented by his or her parent does not benefit from the judgment of an independent third party.”); S.N., 448 F.3d at 60 3 (“A rule that allows parent-attorneys to receive attorneys’ fees would discourage the em ployment of independent counsel.”); W oodside, 248 F.3d at 131 (agreeing with Doe’s reasoning that “the danger of inadequate representation is as great when an em otionally 9 charged parent represents his m inor child as when the parent represents him self”). The Court finds the reasoning in these other circuit decisions persuasive. The decisions rest on the prem ise that the Suprem e Court’s analysis in Kay guides the interpretation of the IDEA. Indeed, the Fifth Circuit recently recognized the primacy of Kay in interpreting federal statutes with attorneys’ fees provisions. See Gahagan v. U.S. Citizenship & Im m igration Servs., 911 F.3d 298 (5th Cir. 20 18). In Gahagan, the Fifth Circuit addressed whether an attorney appearing pro se could recover his attorneys’ fees under the Freedom of Inform ation Act (FOIA). 911 F.3d at 30 0 . The panel ruled that Kay should be read as overruling a 1983 Fifth Circuit decision holding that attorneys appearing pro se could in fact recover attorneys’ fees under FOIA. See Gahagan, 911 F.3d at 30 2-0 3; Cazalas v. DOJ, 70 9 F.2d 10 51 (5th Cir. 1983). The Gahagan court reasoned that FOIA’s attorneys’ fees provision and the provision in § 1988(b)—which was the subject of Kay —were substantially sim ilar in wording, and that the Suprem e Court has repeatedly instructed the lower courts “to apply consistent interpretations to federal fee-shifting statutes.” Gahagan, 911 F.3d at 30 3-0 4. 10 Thus, the Fifth Circuit has instructed the lower courts to apply the Suprem e Court’s interpretation in Kay to fee-shifting statutes that are sim ilar to § 1988(b). The current attorneys’ fee provision in the IDEA is indeed worded similarly to § 1988(b). See 20 § 1415(i)(3)(B)(i)(I) (20 0 5) (“the court . . . m ay award reasonable attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child with a disability”); 42 U.S.C. § 1988(b) (“the court . . . may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs”). The provision in the IDEA should therefore be viewed as an attem pt by Congress to incentivize parties to retain independent, third-party counsel for due process hearings. Kay , 499 U.S. at 438; Gahagan, 911 F.3d at 30 3-0 4. The Court agrees with the Second, Third, Fourth, and Ninth Circuits that to best actuate this congressional intent, the IDEA should be interpreted as barring attorney-parents from recovering attorneys’ fees. See Ford, 461 F.3d 10 87; S.N . ex rel., 448 F.3d 60 1; W oodside, 248 F.3d 129; Doe, 165 F.3d 260 . The Supreme Court has stated that “[w]ithout question a parent of a child with a disability has a particular and personal interest in fulfilling ‘our national policy of ensuring equality of opportunity, full participation, independent living, and econom ic selfsufficiency for individuals with disabilities.’” W inkelm an v. Parm a City Sch. Dist., 550 U.S. 516, 529 (20 0 7) (quoting 20 U.S.C. § 140 0 (c)(1)) (em phasis 11 added). That obvious personal interest prevents an attorney-parent from having the “em otional detachment” necessary to provide his child with effective representation. S.N ., 448 F.3d at 60 3. An interpretation that bars attorney-parents from recovering attorneys’ fees therefore bolsters the statutory policy behind the IDEA’s fee-shifting provision. 14 The basis for concluding that the IDEA does not perm it this recovery has only becom e stronger since Doe, W oodside, S.N ., and Ford were decided. There have been two notable developments in the IDEA since then. First, in W inkelm an—which was decided one year after the m ost recent of these decisions—the Supreme Court ruled that the IDEA grants parents “independent, enforceable rights” that “encompass the entitlem ent to a free appropriate public education for the parents’ child.” W inkelm an, 550 U.S. at 533. This decision allows non-attorney parents to appear in IDEA proceedings pro se to prosecute IDEA claim s on their own behalf. See id. at 535. By holding that parents have enforceable rights under the IDEA, the Suprem e Court blurred the line between whether an attorney-parent is truly 14 Because the Court’s holding is based upon an interpretation of the IDEA, this blanket bar on attorney-parents recovering attorneys’ fees m ust apply even in instances—as is the case here—where the child was adequately represented by his attorney-parent. See Ford, 461 F.3d at 10 91 (noting that “on som e occasions, attorney-parents will provide independent, reasoned representation to their children,” but nonetheless holding that its interpretation of the statute “will better serve Congress’ intentions”). 12 representing only his child’s interests when appearing in IDEA proceedings, or if he is also representing his own. 15 The opinion suggests that those rights are necessarily intertwined. If the attorney-parent is necessarily vindicating his own interests when appearing in his child’s IDEA proceeding, then the reasoning in Kay is directly applicable to the IDEA. Second, each of Doe, W oodside, S.N ., and Ford applied the previous version of the IDEA attorneys’ fees provision. 16 The earlier version provided that the court had the discretion to “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) (20 0 4). The Fourth Circuit in Doe noted that the wording of this provision supported a reading that an attorney-parent does not represent himself when he pursues IDEA services in a due process hearing. Doe, 165 F.3d at 262-63. The court 15 This line is particularly blurry in this case. The record here is am biguous as to whether J am es Nader was himself a party in the due process hearing. The formal request for a due process hearing that the Naders filed does not clearly state whether they them selves were parties. See R. Doc. 1913. The appearances page in the transcript for the first day of hearings states that J am es Nader was appearing “for the m inor child and parents.” R. Doc. 26-4 at 3 (em phasis added). But in his Decision and Order, J udge Cooper stated that J am es and Michelle Nader “requested a hearing on behalf of [their] m inor child.” R. Doc. 19-5 at 2. 16 S.N . and Ford were both decided after the IDEA was am ended in 20 0 4, but each still applied the prior version of the provision, which was in effect when the district courts rendered their decisions. See S.N ., 448 F.3d at 60 2 & n.2; Ford, 461 F.3d at 10 90 . 13 em phasized that “by providing fees ‘to the parents of a child or y outh w ith a disability w ho is the prevailing party ,’” the provision m akes clear that the “party” who is the focus of the provision is the child, not the parent. Id. at 263 (quoting 20 U.S.C. § 1415(e)(4)(B) (20 0 4)) (em phasis in original). But the current IDEA provides that a court “m ay award reasonable attorneys’ fees . . . to a prevailing party w ho is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I) (20 0 5) (em phasis added). This reform ulation indicates that the “party” who is entitled to an award of attorneys’ fees is the parent, not the child. Thus, the provision contemplates that an attorneyparent is a party to the IDEA proceedings. If that is the case, then Kay ’s holding would bear directly on the Court’s interpretation of the IDEA, as Gahagan instructs it should. Finally, plaintiffs’ argument that regulatory guidance from the U.S. Department of Education (DOE) requires a different outcom e is unavailing. Plaintiffs point out that when the DOE prom ulgated its rules to im plem ent the 20 0 4 amendm ents of the IDEA, it noted that “[o]ne comm enter recom mended that § 30 0 .517(a)(1)(ii) and (iii) be revised to refer to an attorney of a parent or a parent because there are m any parents who are attorneys representing their children in due process hearings.” Assistance to States for the Education of Children With Disabilities and Preschool Grants 14 for Children With Disabilities, 71 Fed. Reg. 46540 , 4670 8 (Aug. 14, 20 0 6) (codified at 34 C.F.R. § 30 0 .517). In response to this com m ent, the DOE stated that it “decline[d] to add language to § 30 0 .517(a)(1)(ii) to refer to a parent who is an attorney, because the reference to ‘an attorney of a parent’ would include anyone serving as an attorney.” Id. (em phasis added). But Section 30 0 .517(a)(1)(ii)—the focus of this passage—corresponds to 20 U.S.C. § 1415(i)(3)(B)(i)(II), which is a different provision from the one that perm its a prevailing party parent to recover attorneys’ fees. It instead provides that the court m ay award attorneys’ fees “to a prevailing party who is a State educational agency or local educational agency against the attorney of a parent who files a com plaint or subsequent cause of action that is frivolous, unreasonable, or without foundation. . . .” 20 U.S.C. § 1415(i)(3)(B)(i)(II). The phrase “an attorney of a parent”—which the DOE interpreted in this guidance—does not appear in the provision allowing prevailing party parents to recover attorneys’ fees. See id. § 1415(i)(3)(B)(i)(I). Plaintiffs do not cite any case where a federal district or appellate court addressed whether this interpretation of § 1415(i)(3)(B)(i)(II) overruled previous decisions that attorney-parents could not recover attorneys’ fees. In fact, circuit court decisions issued after August 14, 20 0 6—the date of the 15 DOE’s guidance—have continued to reinforce the rule that attorney-parents cannot recover these fees. See, e.g., W eissburg v. Lancaster Sch. Dist., 591 F.3d 1255, 1260 -61 (9th Cir. 20 10 ) (holding that attorney-grandparents who represent their grandchildren in IDEA proceedings m ay recover attorneys’ fees, but citing Ford, S.N ., W oodside, and Doe in reaffirming that attorneyparents m ay not recover); Pardini v. Allegheny Interm ediate Unit, 524 F.3d 419, 423-25 (3d Cir. 20 0 8) (reaffirm ing that W oodside precluded attorneyparents from recovering attorneys’ fees); Van Duy n v. Baker Sch. Dist. 5J, 50 2 F.3d 811, 826 (9th Cir. 20 0 7) (“The District correctly argues, however, that attorney’s fees should not be granted to parent attorneys who represent their children in IDEA proceedings.” (citing Ford, 461 F.3d at 10 90 ) (em phasis in original)). Plaintiffs suggest that these post-August 20 0 6 decisions do not bear on whether the DOE’s interpretation upended Doe, W oodside, S.N ., and Ford, because the guidance “has sim ply not been presented to or considered by the federal courts.”17 But plaintiffs discount the possibility that the DOE’s guidance has not com e up in this context because in that guidance the DOE was not actually interpreting the provision allowing prevailing party parents to recover their attorneys’ fees. 17 R. Doc. 26 at 4. 16 In all, the Court finds that J am es Nader is not entitled to recover his attorneys’ fees under the IDEA. B. Sarah D id lake The parties also dispute whether plaintiffs can recover attorneys’ fees for legal services provided by Sarah Didlake. The Court finds that plaintiffs m ay not recover attorneys’ fees in connection with Didlake’s legal services, because there is no genuine dispute that J am es Nader directed Didlake’s work throughout the IDEA proceedings. J ames Nader states that he has been practicing law for over 35 years and is a Shareholder and Director at Lobm an, Carnahan, Batt, Angelle & Nader. 18 He has also been an adjunct professor of law at Tulane University for over fifteen years. 19 Didlake is a recent law school graduate who has been practicing law as an associate attorney with Lobm an, Carnahan, Batt, Angelle & Nader for approxim ately two years. 20 Allowing plaintiffs to recover attorneys’ fees for Didlake’s legal services would underm ine the purpose behind barring attorney-parents from recovering attorneys’ fees. Parents like J ames Nader, who have the resources of a law firm at their disposal, would be able to direct the work of junior 18 19 20 R. Doc. 19-7 at 1. Id. at 2. R. Doc. 19-8 at 1-2. 17 attorneys but still recover fees for those attorneys’ services. They would thus not be incentivized to obtain an independent third-party counsel to handle their children’s hearings. A district court in the Southern District of New York was faced with a sim ilar attem pt by a corporate attorney to recover attorneys’ fees under the Fair Credit Reporting Act for services provided by associates whose work he controlled and directed. See Menton v. Experian Corp., No. 0 2-4687, 20 0 3 WL 21692820 , at *3 (S.D.N.Y. J uly 21, 20 0 3). That court held: Allowing [the plaintiff] to recover attorney’s fees sim ply because he utilized the assistance of two associates in the course of litigating this m atter would underm ine the general rule prohibiting attorneys’ fees for pro se litigants who are attorneys. Here, [the plaintiff] is in control of this litigation, has appeared at every hearing, and has signed every pleading. Sim ply because he is fortunate enough have the resources of a large law firm , including associate assistance, we will not allow him to circum vent the rationale underlying the rule prohibiting a pro se attorney from recovering his own fees. Id. (internal citation om itted). As already addressed, the rationale for why pro se litigants who are attorneys cannot recover attorneys’ fees is equally applicable to attorney-parents in the context of the IDEA. Like the attorney in Menton, here there is no material dispute that J ames Nader controlled the litigation during the IDEA proceedings and directed Didlake’s actions. See Baton Rouge Oil Chem . W orkers Union v. ExxonMobil Corp., 289 F.3d 373, 376 (5th Cir. 20 0 2) (“In a bench trial, the 18 court has som ewhat greater discretion to consider what weight it will afford the evidence than it would in a jury trial” (internal quotation m arks om itted)). 21 J am es Nader is a Shareholder and Director at Lobm an, Carnahan, Batt, Angelle & Nader, while Didlake is a junior associate. 22 Plaintiffs state in their statement of facts that J am es Nader “served as lead counsel” in the IDEA proceedings. 23 Indeed, J am es Nader states in an affidavit that he “supervised” Didlake. 24 Two reports from a Novem ber 20, 20 17 telephone status conference in the IDEA proceedings indicate that only the Naders, and not Didlake, participated on behalf of Benjam in Nader. 25 Finally, Didlake’s subsidiary role in the proceedings is further shown by the fact that only J am es Nader appeared as counsel on each day of the hearings. 26 21 R. Doc. 1 (no jury dem and in plaintiffs’ com plaint); R. Doc. 7 (no jury dem and in defendant’s answer); R. Doc. 17 (no jury dem and in defendant’s am ended answer); R. Doc. 37 at 13 (parties stating in their joint pretrial order that this is a non-jury case). 22 R. Doc. 19-7 at 1; R. Doc. 19-8 at 1-2. 23 R. Doc. 28-1 at 2 ¶ 5. 24 R. Doc. 19-7 at 3. 25 See R. Doc. 21-2 at 1; R. Doc. 21-3 at 1. 26 See R. Doc. 21-4 (excerpted records from each day of the due process hearings); R. Doc. 26-4 at 3 (appearances page for the due process hearings, indicating that “Lobm an, Carnahan, Batt, Angelle” appeared “for the m inor child and parents,” and nam ing only J ames Nader as the individual attorney). 19 In all, plaintiffs are effectively attempting to recover attorneys’ fees for any work performed by attorneys at Lobm an, Carnahan, Batt, Angelle & Nader in connection with these IDEA proceedings. But because there is no genuine dispute that J ames Nader controlled that work, and because J ames Nader is the parent of Benjam in Nader, plaintiffs are not entitled to recover Didlake’s attorneys’ fees under the IDEA. IV. CON CLU SION For the foregoing reasons, defendant’s m otion for sum m ary judgment is GRANTED and plaintiffs’ m otion for sum m ary judgm ent is DENIED. Plaintiffs’ com plaint is DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ _29th _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 20