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A.V. v. Burlington Township Board of Education

September 3, 2008

A.V. AND M.V. O/B/O B.V., PLAINTIFFS,
v.
BURLINGTON TOWNSHIP BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

Plaintiffs A.V. and M.V. originally filed this action on behalf of their minor child, B.V., against Defendant, the Burlington Township Board of Education (the "Board"), pursuant to the Individuals with Disabilities Educational Improvement Act ("IDEIA"), 20 U.S.C. § 1440 et seq., as an appeal of the final administrative decision of January 6, 2006 by the Honorable Jeff S. Masin, New Jersey Administrative Law Judge ("ALJ"). After the parties filed cross-motions for summary judgment, this Court issued an Opinion and Order [Docket Items 18 and 19] in which it, inter alia, (1) granted Plaintiffs' motion for attorneys' fees for the administrative phase of the case, but reduced the requested fees to correspond with Plaintiffs' limited success at the administrative level; (2) denied Plaintiffs' motion for summary judgment as to the issue of whether the ALJ erred in denying Plaintiffs' request to place B.V. out-of-district; and (3) found that the Board had failed to comply with the ALJ's decision and ordered the Board's immediate compliance. The parties subsequently reached a private settlement regarding the Board's obligations to B.V.

Presently before the Court is Plaintiffs' motion for attorneys' fees stemming from their post-administrative efforts in this case [Docket Item 36]. For the reasons explained below, the Court will grant Plaintiffs' motion for attorneys' fees, but will reduce the award of fees as set forth herein on account of the limited nature of Plaintiffs' success in litigating this matter before this Court.

I. BACKGROUND

A. Facts

The facts surrounding B.V.'s disabilities and history of educational placements were reviewed in detail in the Court's June 27, 2007 Opinion and Order and are summarized here only insofar as they are relevant to the issues raised by the motion presently under consideration. B.V. was born in 1997 as one of three triplets, and experienced developmental problems starting at an early age. In April 2004, B.V. was diagnosed with attention deficit disorder, and over the next seven months, he was evaluated by numerous specialists who all found that B.V. experienced serious difficulty with math and reading.

During B.V.'s second-grade year, in December 2004, a disagreement arose between B.V.'s parents and his Child Study Team over B.V.'s Individualized Education Plan ("IEP"). While B.V.'s parents felt that he required three hours of individualized reading instruction each day, the Child Study Team ultimately approved only one hour per day of such individualized instruction. At the end of B.V.'s second-grade year, his achievement levels in math and reading reflected his continuing difficulties, and when his parents were presented with an IEP for the 2005-2006 school year, they rejected the IEP and requested that B.V. be placed out-of-district at the Newgrange School in Princeton, New Jersey.

B. Procedural History

On September 19, 2005, Plaintiffs filed a due process petition with the New Jersey Department of Education, Office of Special Education Programs. In their petition, Plaintiffs sought out-of-district placement of B.V. at the Newgrange School, as well as compensatory education. The ALJ did not grant Plaintiffs' request for out-of-district placement, but with respect to the 2005-2006 school year, the ALJ held that "the IEP prepared in April 2005 [was] not reasonably calculated to provide [B.V.] with a meaningful educational benefit" under the IDEA. M.V. and A.V. o/b/o B.V. v. Burlington Twp. Bd. of Educ., OAL Dkt. No. EDW 08276-05s and AGENCY Dkt. No. 2006 10539 at 23. As this Court summarized in its June 27, 2007 Opinion ("A.V. I"):

Noting that the Board eliminated the forty minute per day of reading with B.V., the ALJ concluded that he saw no significant suggestion of such dynamic improvement occurring so as to support the abandonment of a course of instruction that seems to have been helping B.V. The ALJ stated that the Board must revise the IEP and provide B.V. with a meaningful educational benefit meaning that the Board must revise the IEP and provide for B.V. to have daily session with a certified reading specialist for at least forty minutes a day. In addition, the Board must assure that B.V. receives a multi-sensory oriented program throughout his curriculum. Finally, the ALJ ordered that if the district is unable to provide this support in-district, it must determine where such support may be provided.

A.V. v. Burlington Tp. Bd. of Educ., No. 06-1534, 2007 WL 1892469, at *5 (D.N.J. June 27, 2007) (internal quotations and citations omitted).

Plaintiffs appealed the ALJ's decision to this Court on March 31, 2006. In their four-count Complaint, Plaintiffs sought (1) attorneys fees and costs as the prevailing party at the administrative level; (2) a ruling that the ALJ erred in failing to place B.V. out-of-district; (3) a ruling that the ALJ erred in failing to place B.V. in the Newgrange School since the nature and severity of B.V.'s disabilities required an out-of-district placement; and (4) an order stating B.V. should be placed at Newgrange School immediately at the Board's expense because the Board failed to comply with the ALJ's Order. Id. at *1.

The parties filed cross-motions for summary judgment, and on June 27, 2007, the Court issued an Opinion and Order granting in part and denying in part the parties' motions. Specifically, the Court granted Plaintiffs' motion for attorneys' fees, but reduced the award of fees based on the limited success achieved at the administrative level, and denied Plaintiffs' motion with respect to the question of out-of-district placement at the Newgrange School. Additionally, based on Plaintiff's demonstration of the Board's "manifest" noncompliance with aspects of the ALJ's order, the Court ordered the Board to bring itself into compliance with the ALJ's order, and scheduled a compliance hearing "to assure that the Board has satisfied this mandate." Id. at *16.

Following the entry of the June 27, 2007 Opinion and Order, and prior to the scheduled compliance hearing, the parties reached a private settlement as to the educational support and compensatory education that the Board would provide B.V. (Docket Item 31.) The motion for ...


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