On Appeal from the United States District Court for the District of New Jersey (D.C. No. 02-cv-01351) District Judge: Honorable Freda L. Wolfson.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges.
Section 615(i)(3)(B) of the Individuals with Disability Education Act ("IDEA") provides: "In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to the parents of a child with a disability who is the prevailing party." 20 U.S.C. § 1415(i)(3)(B). Plaintiffs-Appellants P.N. and his guardian M.W. (collectively "plaintiffs") appeal from the District Court's Order denying their motion for prevailing party attorneys' fees and granting summary judgment to defendant Clementon Board of Education.
P.N. was born in 1988 and suffers from Attention Deficit Hyperactivity Disorder. During the 2000-01 school year, the Clementon Board of Education ("CBE") expelled P.N. after he sent a note threatening to blow up his school. P.N. was home-schooled for the rest of the year, but was permitted to return to school for the 2001-02 year. P.N. did not repeat that threat but CBE again suspended him during the 2001-02 school year for disruptive behavior. The parties dispute the specific conduct that resulted in this suspension.
Plaintiffs filed a petition for a due process hearing on October 25, 2001.*fn1 The petition sought the following relief: that P.N. be returned to school, that P.N. be reimbursed for the cost of all psychological services received by P.N. since being required to receive such services by CBE,*fn2 that a § 504 plan under the Rehabilitation Act of 1973 be prepared by CBE,*fn3 and that P.N. be evaluated by an independent child study team.
The parties settled the underlying dispute before a due process hearing took place, and the Administrative Law Judge (ALJ) entered two consent orders. The first one, dated November 1, 2001, ordered:
1. On 11/5/01, C.S.D.*fn4 shall return P.N. to his current placement that was in place prior to his removal on 10/16/01.
2. On 11/5/01, C.S.D. shall provide P.N. with appropriate accommodation in regards [to] any behaviors which may interfere with P.N.'s ability to receive an education. Dr. Paul Booker may provide assistance in the development of said accommodation.*fn5 If such assistance is provided, on the return date, this forum shall determine if C.S.D. should reimburse petitioners for Dr. Booker's fees.
3. P.N. is to receive an Independent Child Study Team Evaluation in accordance with the procedures outlined in N.J.A.C. 1:6A-14.3. at C.S.D's expense. The Social Work evaluation shall be performed by C.S.D. The psychiatric evaluation shall be performed by Dr. Raymond H. Schweibert, M.D. If counsel cannot agree on who will do the learning and school psychology evaluations by 11/7/01, each shall submit three names for each evaluation to this forum with the right to object to one of the three proposed evaluators for each evaluation. . . .
4. C.S.D. shall provide petitioners transportation to and from all evaluations.
5. This matter shall reconvene on 12/5/01 before the undersigned A.L.J.
6. This decision is final pursuant to 20 U.S.C.A. § 1415(i)(1)(A) and 34 C.F.R. § 300.510 (1999). If either party feels that this decision is not being fully implemented, this concern should be communicated in writing to the Director, Office of Special Education Programs.
App. at 25-26 (emphasis in original).
The second Consent Order, dated February 13, 2002, stated that the parties "agreed to a resolution of all remaining issues" and ordered:
1. Respondent [C.S.D.] will pay the parents in the amount of $425.00 in satisfaction of petitioners' claims for reimbursement for the costs of psychological treatment and psychiatric services to date, ...