D.S et al v. VOORHEES TOWNSHIP BOARD OF EDUCATION

Filing 28

MEMORANDUM ORDER denying Plaintiffs' request for an award of fees; Clerk of the Court shall close the file. Signed by Judge Renee Marie Bumb on 11/9/2018. (tf, )

[Dkt. Nos. 21 and 22]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

D.S. & B.S., individually and
on behalf of M.S.,
Plaintiffs/CounterclaimDefendants,
v.

Civil No. 16-131 (RMB/JS)
MEMORANDUM ORDER

VOORHEES TOWNSHIP BOARD OF
EDUCATION,
Defendant/CounterclaimPlaintiff.

On December 21, 2016, this Court issued an Opinion and
Order granting Plaintiffs’ D.S. and B.S. “prevailing party”
status on the very limited issue of stay put protection afforded
to M.S.’s occupational therapy services.
22].

[Docket Nos. 21 and

Generally speaking, the Court held that other than the

stay put protection regarding occupational therapy, Plaintiffs
obtained no additional merits-based relief than what had already
been offered and afforded to M.S. by the Defendant Voorhees
Township Board of Education’s earlier settlement.
The question that remained was whether the Section 504 stay
put relief that Plaintiffs sought in the Second Due Process
Petition, but which was not the subject of the first settlement

should entitle Plaintiffs to attorney’s fees.

The Court

answered that question in the affirmative, and directed the
parties to submit additional briefing.

For the reasons that

follow, the Court will not award attorney’s fees to the
Plaintiffs.
In M.R. v. Ridley School District, 868 F.3d 218 (3d Cir.
2017), the Court of Appeals for the Third Circuit held that a
fee award is available to parents who, after unsuccessfully
challenging a school district’s IEP, later obtain a court order
requiring the school district to reimburse them for the costs of
the child’s stay put placement.
here.

The rationale of Ridley applies

Even though Plaintiffs were unsuccessful in their

challenges under the Second Due Process Petition – for reasons
the Court set out in its Opinion, i.e., the School District had
already agreed to such services – Plaintiffs would nonetheless
be entitled to attorney’s fees for Section 504 stay put costs.
The problem here, however, is that Plaintiffs have failed to
provide any evidence that the settlement agreement between the
parties gave Plaintiffs “backward-looking compensatory relief,”
which would be “an independent merits determination” entitling
them to prevailing party status and fees.
230.

Ridley, 868 F.3d at

This is true not only with respect to the Section 504

occupational therapy services, but with what also appears to be

2

a newly resurrected argument regarding speech therapy services.1
The parties have submitted no evidence that Plaintiffs obtained
“backward-looking compensatory relief” with respect to either
occupational therapy services or speech therapy services.
Accordingly,
IT IS ON THIS 9th day of November 2018, ORDERED that
Plaintiffs’ request for an award of fees is DENIED; and
IT IS FURTHER ORDERED that the Clerk of the Court shall
close the file.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

1

That there was no such evidence calls into question this
Court’s “prevailing party” decision, but the Court need not
revisit the issue as it awards no fees.
3