3rd Issues Major Decision Holding That Parent Attorneys Are Not Entitled To Reimbursement For Attorneys Fees In Representing Their Child In IDEA Administrative And Federal Court Litigation

Pardini v. Allegheny Intermediate Unit, ___F.3d___, 2008 WL 2004471 (3rd Cir. May 12, 2008), is a major IDEA court blunder. The court holds that an attorney parent who successful represented his child in administrative and federal litigation was not entitled to recovery reasonable attorneys fees under the IDEA's attorney fee shifting provision.

The court basically followed its earlier decision in Woodside v. School Dist., 248 F.3d 129 (3d Cir. 2001) which held that parent attorneys are not entitled to recover attorneys fees because under Kay v. Ehrler, 499 U.S. 432 (1991)(a non-IDEA case), the purpose of an attorney fee shifting statute is to encourage independent counsel. Fair enough, but the decision should not have stopped here.

Woodside as well as the three other circuit court decisions in this area were all decided before Winkelman v. Parma City School Dist., 127 S.Ct. 1994 (2007), a case the Third Circuit does not even bother to cite. Winkelman held that parents are aggrieved parties under the IDEA and that they have enforceable rights under the IDEA. It is submitted that a very strong argument can be made that one such right should be reimbursement for attorney parent legal fees in representing their child. The least the court could have done would have been to analyze this important issue. The decision is also not particularly well reasoned and not up to par with other 3rd Circuit decisions. I hope that an application for en banc review will be filed.

Mitchell H. Rubinstein