Frudden v. Pilling

JON E. FRUDDEN,as parent and guardian of his minor child Jane Doe,and K.F.,^* Plaintiffs-Appellants, v. KAYANN PILLING, individually, and in her official capacity as the Principal ofRoy Gomm Elementary School and as an executive director ofthe Roy Gomm Elementary School Parent-Faculty Association, Inc; et al., Defendants-Appellees.

No. 18-15704

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted: March 26, 2020

April 15, 2020

NOT FOR PUBLICATION

D.C. No. 3:11-cv-00474-RCJ-WGC

MEMORANDUM^**

Appeal from the United States District Court for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Submitted March 26, 2020^*** Las Vegas, NevadaBefore: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Plaintiffs-Appellants Jon E. Frudden, on behalf of his minor child Jane Doe, and K.F., his son, who has now reached the age of majority, appeal the district court's order denying their motion for attorney's fees under 42 U.S.C. § 1988. We affirm.

The Fruddens sued their children's elementary school and school officials, challenging the school's uniform policy under 42 U.S.C. § 1983. In their initial complaint, both Jon Frudden and Mary Frudden were individual plaintiffs and asserted their own claims in addition to claims on behalf of their minor children. Mary, a licensed attorney, represented the family pro se.

The district court dismissed their claims. Frudden v. Pilling (Frudden I), 842 F. Supp. 2d 1265, 1282 (D. Nev. 2012). The Fruddens appealed only one claim: that the school's uniform policy violated the free speech rights of their minor children under the First Amendment. We reversed and remanded, holding that strict scrutiny applied to the uniform policy. Frudden v. Pilling (Frudden II), 742 F.3d 1199, 1208 (9th Cir. 2014).

On remand, the Fruddens filed a second amended complaint. They asserted only one claim in the second amended complaint: a free speech claim on behalf of the Frudden children. The only plaintiff in the action was "Jon Frudden, as parent and guardian of his minor children, John Doe and Jane Doe." The second amended complaint included no claims asserting the individual rights of Jon or Mary. Mary represented the Fruddens before the district court and in subsequent appeals.

The district court held that the school uniform policy survived strict scrutiny, Frudden v. Pilling (Frudden III), No. 3:11-cv-00474-RCJ-VPC, 2015 WL 540206, at *8 (D. Nev. Feb. 10, 2015), and we reversed in substantial part, Frudden v. Pilling (Frudden IV), 877 F.3d 821, 833 (9th Cir. 2017). We transferred the Fruddens' request for attorney's fees on appeal to the district court.

The district court denied the request on the ground that attorney parents representing the interests of their minor children are not entitled to fees under 42 U.S.C. § 1988. We agree.

The Supreme Court has held that pro se litigants may not recover attorney's fees under 42 U.S.C. § 1988, because Congress's intent in providing for attorney's fees was to encourage litigants to obtain the counsel of an independent third party. Kay v. Ehrler, 499 U.S. 432, 437-38 (1991). Relying on Kay, we held that the "virtually identical" fee shifting provision of the Individuals with DisabilitiesEducation Act, 20 U.S.C. § 1415, did not allow an attorney parent to recover attorney's fees in an action asserting the rights of the attorney's minor child. Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087, 1090-91 (9th Cir. 2006).

As in the case of a pro se litigant, a minor child represented by a parent does not benefit from "the judgment of an independent third party." Id. at 1090 (quoting Kay, 499 U.S. at 437). Unlike an adult relative, a child cannot make an "informed choice as to whether [a parent] can fairly represent [the child's] interests." Rickley v. County of Los Angeles, 654 F.3d 950, 956 (9th Cir. 2011) (citation omitted); see Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997). The Fruddens therefore may not recover attorney's fees for Mary's work representing her minor children.

The Fruddens also contend that Jon has standing to proceed as a plaintiff in his individual capacity in this case, and that he should therefore be...