The opinion of the court was delivered by: Honorable Jerome B. Simandle
This matter comes before the Court upon the motion of Defendants H.B., E.B., and P.B. for the award of attorney's fees, expert fees, and costs to be paid by Plaintiff Deptford Township School District ("Deptford"). In the underlying dispute, Plaintiff sought review of a final administrative decision under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C.S. § 1400 et seq. This Court reversed the administrative decision in part, eventually holding that Deptford had offered a Free Appropriate Public Education ("FAPE") but it was not in the Least Restrictive Environment ("LRE"). Defendants filed several counterclaims and this Court entered an order regarding the issue of remedy. The parties filed cross-motions for reconsideration, and Plaintiff moved for summary judgment to dismiss Defendants' counterclaims. This Court ordered Defendants to reimburse the Plaintiff $47,034 and Plaintiff to pay Defendants $53,040, resulting in a balance of $6,006 owed to Defendant. The court granted Plaintiff's motion for summary judgment and dismissed Defendants' counterclaims. The Court convened a hearing regarding the failure to provide the LRE and found that no harm had been demonstrated by Defendants and that Defendants were entitled to no remedy. For the following reasons, Defendants' motion for attorney's fees, expert fees and costs will be granted in part and dismissed in part without prejudice to refiling a proper application for such fees and costs.
This case involves Plaintiff Deptford's Individualized Education Plan ("IEP") under the IDEA for Defendant H.B., an autistic child, covering June 1999 through June 2000. The original IEP was submitted to H.B.'s parents and called for H.B. to spend mornings at CDC, and afternoons at the school district's Pine Acres School in the Pre-School Handicapped ("PSH") class. H.B.'s parents, unhappy with the IEP offered by the District, unilaterally enrolled H.B. in the Goddard School, a private school, at the start of the summer of 1999. The parents of H.B. rejected mediation to resolve the educational placement of H.B. Instead, they filed a petition for due process in October 1999 with Barbara Gantwerk, Director of the New Jersey Office of Special Education ("NJOSE"), which was then transferred to the Office of Administrative Law ("OAL").
The Honorable John R. Futey, Administrative Law Judge ("ALJ"), after holding several days of due process hearings, found by a preponderance of the credible evidence on December 6, 2000, that Deptford had failed to provide H.B. with a meaningful education. (ALJ Decision, 12/6/00, at 34. See also Deptford Township Sch. Dist. V. H.B., No. 01-0784, 2005 U.S. Dist. LEXIS 11602, at *1 (D.N.J. June 15, 2005)). The ALJ ordered Deptford to create a full day in-district program in a regular education class, incorporating applied behavioral analysis and discrete trial therapy ("DTT") techniques to be coordinated with the Partners in Therapy program. (Id.)
Additionally, the ALJ ordered Deptford to bear the cost of reimbursing the B. family for all expenses incurred to date for providing H.B. with DTT from Partners in Therapy, and any future costs. (Id.) Until a program could be created, the ALJ ordered that H.B. be permitted to remain at the Goddard School so long as it remained educationally appropriate, and all services since her initial enrollment there in the summer of 1999 to her reintroduction into the Deptford program were to be borne by Deptford. (Id. at 35) In addition, the ALJ ordered Deptford to reimburse H.B.'s parents for all transportation costs incurred during her period of enrollment at Goddard School. (Id.) The ALJ also ordered Deptford to provide compensatory education in the areas of speech therapy and occupational therapy to H.B. from the point of her enrollment at Goddard School and for all times she was not given such services by the District. Furthermore, the ALJ ordered Deptford to reimburse Dr. Edna Barenbaum for the costs of her independent evaluation of H.B. The ALJ, however, denied the request for a comprehensive evaluation for physical therapy.
Finally, the ALJ ordered H.B.'s parents to submit an itemized list of these expenses to Deptford and for Deptford to pay within 30 days of its receipt. (Id.) Thereafter, the ALJ rendered an Order dated January 3, 2001, which required, inter alia, that Deptford complete a psycho-educational evaluation, a speech and language evaluation, and an updated occupational evaluation by Dr. Barenbaum and ordered Deptford to pay the costs for transportation and all evaluations required on behalf of H.B., while permitting her to remain at the Goddard School's Chesterbrook educational facility. (ALJ Order, 1/3/01.)
Plaintiff Deptford filed an appeal from the ALJ's decision of January 3, 2001 in this Court on February 15, 2001. Although Deptford's Complaint herein recited that it was an appeal from the January 3, 2001 decision, Deptford failed to seek a stay of that decision by the ALJ pending this appeal until May 29, 2001, which this Court then denied on September 20, 2001, and Deptford failed to address the underlying ALJ Order of December 6, 2000 at that time. Moreover, Deptford failed at that time to file the administrative record from which it took its appeal. Meanwhile, on June 15, 2001, the B. family moved out of the Deptford School District.
On September 27, 2001, Plaintiff amended its Complaint to reflect that it was appealing from the ALJ decision of December 6, 2000. Thereafter, in an Opinion filed November 2, 2001, this Court granted the motion of third-party defendants Barbara Gantwerk, Director of the New Jersey Office of Special Education, and John Farmer, then Attorney General of New Jersey, to enforce the ALJ's decision and also denied Deptford's new motion for a stay of execution of judgment and of its obligation to advance the reimbursement to the providers as ordered by the ALJ, largely due to the delay of prior Deptford counsel to seek a stay of those obligations in a timely manner. (See Nov. 2, 2001 Opinion at 7-15.)
On December 11, 2001, this Court entered an Order which addressed Plaintiff's motion for reconsideration with respect to the stay of enforcement of the ALJ decision pending that appeal. This Court granted the stay with respect to compensatory educational services and other services not actually rendered by providers to H.B., but denied it with respect to reimbursement for services actually rendered by providers to H.B. as ordered by the ALJ on December 6, 2000 and January 3, 2001, insofar as those services were rendered through June 1, 2001. The December 11, 2001 Order also denied Defendants' cross-motion to hold Plaintiff in contempt. Finally, that Order required Plaintiff to immediately pay a sum of $88,090.61 to be used to pay for services already rendered, subject to reallocation depending upon the determination on the merits of the case.
In an Opinion issued on February 15, 2002, on Plaintiff's motion for summary judgment, this Court affirmed the ALJ's Orders in part and reversed them in part, determining that Deptford Township had provided a free, appropriate public education ("FAPE") to H.B., but not in the least restrictive environment ("LRE"). (See Feb. 15, 2002 Opinion.) Deptford then filed a motion for reconsideration on June 11, 2002. In an Opinion dated March 27, 2003, this Court denied Plaintiff's motion for reconsideration, upholding its determination that Deptford had not provided H.B. a FAPE in the least restrictive environment. (See Mar. 27, 2003 Opinion.)
By Order dated January 27, 2004, this Court bifurcated the case, splitting the IDEA appeal from the family's remaining counterclaims pursuant to 42 U.S.C. § 1983,*fn1 and the remedy issue was set down for a final hearing. Plaintiff filed a motion for partial summary judgment as to the remedy issue on February 6, 2004 and Defendants filed a cross-motion for summary judgment on March 4, 2004. The parties agreed that no further testimony of witnesses was required and that the remedy issue was ripe for final determination. This Court issued its Opinion and Order on September 29, 2004, which ordered that Plaintiff is entitled to reimbursement from Defendants in the amount of $52,370.00 and also that Defendants are entitled to an award of $52,800.00 for use in providing H.B. with compensatory occupational and speech therapies. The Court held that Defendasnts had suffered no harm from the temporary lack of the Least Restrictive Environment, and that no remedy was warranted. The parties then sought reconsideration of this Court's September 29, 2004 Order.
Moreover, Deptford filed its motion for summary judgment in early December 2004, seeking dismissal of Defendants' counterclaims and third party complaints for damages under 42 U.S.C. § 1983, violation of the Rehabilitation Act, compensatory damages for the parents' loss, pre-judgment interest, violation of the Federal Educational Rights and Privacy Act of 1974 and Constitutional claims against state defendants. The Court heard oral argument on the motions for reconsideration and summary judgment on January 28, 2005 and February 10, 2005, respectively.
On June 15, 2005, this Court issued an Opinion and Order with respect to both the reconsideration of remedy and Plaintiff's motion for summary judgment. In recalculating the amount owed to Defendants, this Court considered the prevailing market rate for occupational and speech therapy over an extended 52-week school year. This increased the amount owed to Defendants from $52,800 to $53,040. Furthermore, this Court concluded that ALJ Futey indeed ordered two evaluations by Dr. Barenbaum. The initial evaluation was billed at $2,525, and the second at $2,100, which this Court later reduced to a sum of $500 at a hearing ...