                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2008

D.S. v. Neptune Twp Bd Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4514




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"D.S. v. Neptune Twp Bd Ed" (2008). 2008 Decisions. Paper 1599.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1599


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 06-4514
                                      ___________

                 D.S.; S.S., ON BEHALF OF MINOR Z.S., A MINOR

                                                              Appellants

                                            v.


                  NEPTUNE TOWNSHIP BOARD OF EDUCATION
                              ___________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                  (Civ No. 05-cv-05652)
                     District Judge: Honorable Anne E. Thompson
                                      ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                 November 29, 2007

     Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge.

                               (Filed: February 14, 2008)


                                       OPINION




      *
         Honorable Paul S. Diamond, District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.

                                            1
FUENTES, Circuit Judge.

       Appellants D.S. and S.S. (“the parents”), on behalf of their minor son, Z.S. (“the

child”), appeal the District Court’s denial of their motion for attorneys’ fees under the

Individuals with Disabilities Education Act’s (“IDEA”) fee shifting provision, 20 U.S.C.

§ 1415(i)(3)(B). We affirm the District Court’s order because, under the plain meaning of

the statute, Z.S. is not a child with a disability given that he has not been found to need

special education and thus the parents are not entitled to attorneys’ fees under IDEA.

       In 2003, the New Jersey Department of Human Services, Division of Youth and

Family Services (“DYFS”) removed the child from his home after it was discovered that

he had molested two younger siblings. A few months later, the child, who had previously

been home-schooled, was enrolled as a freshman at Neptune High School, which was

operated by Appellee Neptune Township Board of Education (“Neptune”). During his

first year, he underwent several independent psychiatric and psychological evaluations

which identified various disorders and recommended that the child be given

psychotherapy, special education and placed in a residential treatment program.

       In May 2004, the parents requested a Child Study Team (“CST”) evaluation to

determine the child’s eligibility for special education services and related services under

IDEA. In the months following, the CST convened several times to discuss the parents’

request for an evaluation, reviewed the independent recommendations and ultimately

determined that an evaluation was not warranted and the child was not eligible for special



                                              2
education and related services.

       In December 2004, the parents filed a due process petition seeking emergency

relief in the form of an order directing Neptune to place the child in an out-of-district

residential treatment program, to pay for the educational component of such a program

and to evaluate the child to determine if he was eligible for special education and related

services. This matter was transmitted by the New Jersey Department of Education (“NJ

DOE”) to the Office of Administrative Law for a hearing before an Administrative Law

Judge (“ALJ”). The ALJ issued a decision denying emergency relief and ordering

Neptune’s CST to conduct a special education evaluation.

       In a parallel proceeding in New Jersey’s Superior Court, Family Part, it was

determined that the child should be placed at KidsPeace, a private residential treatment

program in Orefield, Pennsylvania. It was agreed that the cost of the treatment

component of the program as well as residential expenses were to be covered by state

agencies. Subsequently, the NJ DOE determined that Neptune was responsible for the

educational costs of the child’s placement based on residency.

       As a result of the child’s placement at KidsPeace, the CST claimed it was unable

to complete its evaluation. A month later, the ALJ issued an order directing Neptune to

continue with the special education evaluation as previously ordered. Shortly thereafter,

Neptune evaluated the child and again concluded that he was not eligible for special

education and related services. The parents then requested an independent educational



                                              3
evaluation (“IEE”) of the child. Pursuant to this request, the ALJ issued an order for an

IEE at the expense of Neptune. The ALJ also allowed the parents to amend their due

process petition to appeal Neptune’s determination that the child was not eligible for

special education and related services and to demand that Neptune provide their child

with an IEE. After the parents amended their petition for a due process hearing

accordingly, they withdrew their petition and filed a motion for attorneys’ fees under

IDEA with the District Court. The District Court denied the parents’ motion for

attorneys’ fees on the ground that the child was never determined eligible for special

education and related services. The District Court did not reach the question of whether

the parents were “prevailing parties.”

       The parents argue that the plain language of the IDEA fee shifting provision does

not limit the availability of prevailing party attorneys’ fees only to the parents of a child

who has been determined eligible for special education services. They argue that 1) the

other procedural safeguards in § 1415(b) (i.e., evaluation and identification) precede any

determination of eligibility and that the use of the term “child with a disability” must

include children suspected of having a disability and 2) unlike other sections, the fee

shifting provision does not incorporate by reference the definition in § 1401(3).

       The fee shifting provision under IDEA provides that “[i]n any action or proceeding

brought under this section, the court, in its discretion, may award reasonable attorneys’

fees as part of the costs – (I) to a prevailing party who is the parent of a child with a



                                               4
disability. . . .” 20 U.S.C. § 1415(i)(3)(B). This statutory language requires that an

individual seeking attorneys’ fees under IDEA not only be a “prevailing party” but also

“the parent of a child with a disability.” Id. In the definition section, 20 U.S.C. §

1401(3)(A), Congress defined the term “child with a disability” as follows:

       Except as otherwise provided, in this chapter: . . . [t]he term ‘child with a
       disability’ means a child –

       (i) with mental retardation, hearing impairments (including deafness),
       speech or language impairments, visual impairments (including blindness),
       serious emotional disturbance (referred to in this chapter as “emotional
       disturbance”), orthopedic impairments, autism, traumatic brain injury, other
       health impairments, or specific learning disabilities; and

       (ii) who, by reason thereof, needs special education and related services.

20 U.S.C. § 1401(3)(A)(emphasis added).

       In a matter of first impression, the parents’ appeal requires us to interpret this fee

shifting provision under IDEA. “It is axiomatic that statutory interpretation properly

begins with the language of the statute itself, including all of its parts.” Velis v. Kardanis,

949 F.2d 78, 81 (3d Cir. 1991). As the District Court noted, where the meaning of a

statute is plain, a court will make no further inquiry unless the literal application of the

statute will end in a result that conflicts with the intentions of Congress. See U.S. v. Ron

Pair Enterprises, Inc., 489 U.S. 235, 242 (1989). We have recognized that definitions in a

statute should be presumptively taken as reflecting Congressional intent. See In re Jaritz

Industries, Ltd., 151 F.3d 93, 100 (3d. Cir. 1998). We need not resort to legislative

history unless we find the statutory language to be ambiguous. See Velis, 949 F.2d at 81.

                                               5
       The definition of a “child with a disability” reflects Congress’ intent that the fee

shifting provision should only apply where a child has an impairment listed in 20 U.S.C. §

1401(3)(A)(i) and “needs special education and related services.” 20 U.S.C. §

1401(3)(A)(ii). Written in the conjunctive, the statute should not be read to protect

children with an impairment but not requiring special education. We find this language to

be unambiguous and thus our analysis need go no further.

       It is undisputed that the parents secured four separate orders from the ALJ

ordering Neptune to conduct a special education evaluation of the child, to pay for an IEE

and to pay the educational costs of the child’s placement at KidsPeace. But for retaining

counsel, the parents would not have secured these benefits for the child. However, under

the plain language of the statute, these benefits alone without the determination that the

child needed special education, do not make him a child with a disability. In 2004,

Neptune concluded that an evaluation to determine the child’s eligibility for special

education services was not warranted despite outside evaluation reports. Subsequent to

the parents’ pro se request for a due process hearing, Neptune submitted a letter to the

ALJ asserting that it was unable to complete the court ordered evaluation and incorrectly

stated that the parents intended to withdraw their petition, further evidencing that Neptune

likely would have not completed the evaluations absent the ALJ’s orders. However, the

record reflects that Neptune considered the child for special education and determined

that he was not eligible for special education on three separate occasions following



                                              6
various evaluations. The parents withdrew their due process petition prior to an

adjudication by an ALJ regarding the child’s entitlement to special education. Thus, there

was never a determination that the child needed special education. Because the parents

withdrew their due process hearing petition, they did not have any determination or

decision to appeal to the District Court, compelling the inference they were not within the

purview of IDEA. The parent’s failure to pursue their rights under IDEA limits their right

to now seek attorneys’ fees.

       We also conclude that the plain language of the statute, including Congress’

definition of a “child with a disability,” is consistent with the purpose of IDEA, which, in

relevant part, is “to ensure that all children with disabilities have available to them a free

appropriate public education that emphasizes special education and related services . . .”

20 U.S.C.A. § 1400(d)(1)(A). Furthermore, this Court has stated that “[t]he purpose of

the fee provision in IDEA is to enable parents or guardians of disabled children for whom

the statute was enacted to effectuate the rights provided by the statute.” See P.N. v.

Clementon Bd. of Educ., 442 F.3d 848, 856 (3d Cir. 2006). Contrary to the parents’

argument, there is no evidence that Congress intended IDEA to protect the rights of

“children with a disability who have not been determined eligible for special education

services and children merely suspected of having a disability.” See Pet. Br. at 11.1


       1
        We note that the holding in Murphy v. Girard School Dist., which the parents rely
on and the District Court attempted to distinguished, does not appear to be consistent with
the plain language of IDEA. See 134 F. Supp. 2d 431 (W.D.Pa. 1999). In Murphy, the

                                               7
       For the foregoing reasons, we will affirm the District Court’s order.




parents initiated a due process hearing and the hearing officer, the appeals panel and state
court found that Bethany was not in need of special education. Id. at 432-33. In a
subsequent action, the District Court awarded attorneys’ fees under IDEA, finding that
the parents were a “prevailing party.” Id. at 438. In its analysis, the District Court did not
discuss whether Bethany was a child with a disability under the statutory definition and
specifically noted that the parents did not prevail on the special education services issue.
Id. Following our analysis above and the facts from the District Court opinion, Bethany
would not be a “child with a disability” under the plain language of IDEA because she
was not found to need special education and her parents should not have prevailed in
obtaining attorneys’ fees.

                                              8
