                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2002

O.J. v. Bd Ed Orange Twp
Precedential or Non-Precedential:

Docket No. 01-3690




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PRECEDENTIAL

       Filed April 16, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3690

J.O., on behalf of C.O., and J.O.,
       Appellant

v.

ORANGE TOWNSHIP BOARD OF EDUCATION

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 00-cv-3792)
District Judge: Hon. William G. Bassler

Submitted Under Third Circuit LAR 34.1(a)
April 4, 2002

Before: SLOVITER, BARRY and ALARCON,*
Circuit Judges

(Filed April 16, 2002)

Ruth Deale Lowenkron
 On the Brief
Education Law Center
Newark, New Jersey 07102

 Attorney for Appellants
_________________________________________________________________

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.



       Nathanya G. Simon
       Cynthia S. Ham
        Of Counsel and On the Brief
       Schwartz Simon Edelstein Celso &
        Kessler, LLP
       Florham Park, New Jersey 07932

        Attorneys for Appellee

       David F. Abernethy
       Kimberly M. Coffina
       Peter J. Gallagher
       Drinker Biddle & Reath LLP
       Philadelphia, PA 19103

        Attorneys for Amici Curiae,
       The American Civil Liberties Union
       of New Jersey, ARC of New Jersey,
       Disability Rights Advocates, The
       National Association of Protection
       and Advocacy Systems, The New
       Jersey Coalition for Inclusive
       Education, Inc., New Jersey Parent
       Advocacy, Training and Help, New
       Jersey Protection and Advocacy,
       Inc., The Rutgers School of Law-
       Newark Special Education Clinic,
       and United Cerebral Palsy
       Associations

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant J.O., on her own behalf and on behalf of her
son, C.O., brought suit in the United States District Court
for the District of New Jersey seeking prevailing party
attorney’s fees and costs for an administrative proceeding
conducted pursuant to the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. S 1400 et seq. (2001). In
an emergency hearing, an ALJ denied the petition of the
Orange Township Board of Education ("Board") requesting
an order that C.O. be home-schooled pending the

                                  2


determination of an appropriate educational placement and
granted J.O.’s counter-petition requesting C.O.’s immediate
reinstatement to school and the performance of a functional
behavioral assessment of C.O. by a specialist upon the
consent of the parties.

On a motion for summary judgment, the District Court
denied J.O.’s request for attorney’s fees, concluding that
the relief given by the ALJ was temporary in nature and did
not constitute substantial relief on the merits. 1 J.O. timely
appealed.

I.

FACTS AND PROCEDURAL BACKGROUND

At the time this action was commenced, C.O. was a
fifteen-year old student at Orange High School in New
Jersey exhibiting behavioral difficulties. Neither the parties
nor the District Court dispute that C.O. was eligible for the
protections of the IDEA, though he had not been evaluated
by the time of these actions.

Due to a number of alleged incidents during the 1999-
2000 school year, C.O. was suspended from school three
different times for a total of more than seventy days.
Between November 17, 1999 and March 28, 2000, C.O. was
only permitted in school for ten days. He received only
limited home instruction during a portion of that time
period.
On March 15, 2000, while C.O. was still suspended, the
Board filed a motion for emergency relief with the New
Jersey Department of Education, Office of Special
Education Programs, seeking to (1) "place C.O. on home
instruction until such time that an appropriate educational
placement can be found for him," and (2) compel C.O. to
_________________________________________________________________

1. In its answer to appellants’ complaint, the Board asked for dismissal
of the complaint with prejudice and an award of"attorneys’ fees, costs
of suit and such other relief as the Court may deem appropriate." App.
at 31. The District Court does not appear to have ruled on these motions
and thus we will treat them as denied.

                                3


participate in special Child Study Team evaluations. App. at
14, 25. On March 22, 2000, J.O., C.O.’s mother, filed a
cross-petition on C.O.’s behalf, seeking to enjoin the Board
to (1) immediately reinstate C.O. to Orange High School, (2)
"hire a behavioral specialist to perform a Functional
Behavioral Assessment of C.O. and establish a Behavior
Intervention Plan," (3) assess C.O.’s educational needs and
respond to those needs, (4) assess the instruction that C.O.
missed while suspended and provide the missed
instruction, and (5) permanently enjoin the Board from
suspending C.O. in the future absent the provision of the
requirements of the IDEA and procedural due process. App.
at 14-15. On that same day, J.O. also filed another
application with the Commissioner of Education requesting
injunctive relief, which was reserved by the ALJ for a future
final hearing.

The matter was transferred to the New Jersey Office of
Administrative Law and, on March 28, 2000, an emergency
relief hearing was held before an ALJ. As an initial matter,
the ALJ noted that J.O. represented to the ALJ that she
would make C.O. available for the Child Study Team
evaluations, thus eliminating the need to rule on the
Board’s request for an order compelling C.O. to participate.
The ALJ denied the Board’s motion in its entirety and
granted appellants’ request to have C.O. immediately
reinstated in Orange High School. The ALJ also ordered
that "upon consent of the parties," the Board must hire a
behavioral specialist to perform an assessment of, and
establish a plan for, C.O. App. at 14. The rest of the
appellants’ requests were denied. Appellants moved out of
the Orange Township School District shortly after this
ruling so there were no further administrative proceedings
concerning C.O.’s education.

On August 7, 2000, appellants filed suit in the District
Court seeking attorney’s fees and costs as the prevailing
party in the administrative proceeding. The District Court
denied appellants’ application for fees, concluding that the
relief they attained was not the "permanent resolution of
the merits of any of [appellants’] claims." App. at 6-7.

                                4
II.

DISCUSSION

A.

Jurisdiction and Standard of Review

The District Court had jurisdiction over this proceeding
under the IDEA, 20 U.S.C. S 1415(i)(3)(A), and 28 U.S.C.
S 1331. This court has jurisdiction over this final decision
pursuant to 28 U.S.C. S 1291.

We review the District Court’s findings of fact for clear
error. See Holmes v. Millcreek Township Sch. Dist., 205 F.3d
583, 589 (3d Cir. 2000). "[W]e exercise plenary review over
the legal issues relating to the appropriate standard under
which to evaluate an application for attorney’s fees." County
of Morris v. Nationalist Movement, 273 F.3d 527, 535 (3d
Cir. 2001).

B.

Standard for Prevailing Party Status Under the IDEA

The parties do not dispute that, under the IDEA, a
prevailing party is entitled to seek attorney’s fees and costs:

       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. S 1415(i)(3)(B).

Generally, parties are considered prevailing parties if
"they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing
suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st
Cir. 1978)). This court articulated a two-prong test to
determine if a party was a prevailing party: First,"whether
plaintiffs achieved relief," and second, "whether there is a

                                5


causal connection between the litigation and the relief from
the defendant." Wheeler v. Towanda Area Sch. Dist., 950
F.2d 128, 131 (3d Cir. 1991).

A party need not achieve all of the relief requested nor
even ultimately win the case to be eligible for a fee award.
"[A]s long as a plaintiff achieves some of the benefit sought
in a lawsuit, even though the plaintiff does not ultimately
succeed in securing a favorable judgment, the plaintiff can
be considered the prevailing party for purposes of a fee
award." Id. The relief need not be the exact relief requested
as long as it goes toward achieving the same goal. To
succeed, "at a minimum . . . the plaintiff must be able to
point to a resolution of the dispute which changes the legal
relationship between itself and the defendant." Texas
Teachers Ass’n v. Garland Sch. Dist., 489 U.S. 782, 792
(1989). The only clear exception to this "generous
formulation" is where the plaintiff ’s success is "purely
technical or de minimus." Id. The degree of the party’s
success goes to the amount of the ultimate award, not to
the availability of an award. Id. at 792-93.

The dispute in this case centers around the
characterization of the relief achieved by the appellants --
specifically, the ALJ’s order that the Board must allow C.O.
to return to school. Appellants argue that they are
prevailing parties because they successfully defended
against the Board’s petition and succeeded on the request
in their cross-petition for a behavioral specialist and for the
immediate reinstatement of C.O. to Orange High School,
their alleged primary goal. Appellants argue this constituted
substantial relief, noting that one of the main goals of the
IDEA was to prevent "unconscionable exclusions of children
with disabilities from schools." Appellants’ Br. at 9.

The District Court concluded that the ALJ ordered the
Board to reinstate C.O. to force C.O. to undergo a Child
Study Team evaluation and that the ALJ elected to have
C.O. educated at school rather than at home while this
evaluation was undertaken. On this basis, the District
Court concluded that the ALJ’s decision to reinstate C.O.
was analogous to a "stay-put" order and held that a party
is not entitled to attorney’s fees when only given interim

                                6


relief such as a stay-put order. App. at 8 (citing Hunger v.
Leininger, 15 F.3d 664 (7th Cir. 1993)).

The stay-put provision of the IDEA provides in part that:

       [D]uring the pendency of any proceedings conducted
       pursuant to this section, unless the State or local
       educational agency and the parents otherwise agree,
       the child shall remain in the then-current educational
       placement of such child . . . .

20 U.S.C. S 1415(j). Stay-put orders are designed to
maintain the status quo during the course of proceedings.
They "function[ ], in essence as an automatic preliminary
injunction." Drinker v. Colonial Sch. Dist. , 78 F.3d 859, 864
(3d Cir. 1996) (describing the stay-put provision as"an
absolute rule" to maintain the current educational
placement "regardless" of the merits of the case).

Appellants present several arguments in support of their
request for fees. First, they argue that their success in their
request that the ALJ order the Board to hire a behavioral
specialist to conduct a functional assessment of C.O.’s
educational needs was substantial and warrants fees.
However, we cannot take issue with the District Court’s
dismissal of the relevance of this relief because the order to
hire a behavior specialist was made contingent upon the
"consent of the parties," a "consent" that does not appear
on the record.

Second, and primarily, appellants argue that the return
of C.O. to school and the corresponding denial of the
Board’s request to exclude C.O. from school constituted
substantial relief entitling them to fees. They note that the
IDEA was motivated by a concern that schools used
disciplinary measures to exclude students with disabilities
and students who were "hard-to-handle." Honig v. Doe, 484
U.S. 305, 324 (1988). One of the purposes of the IDEA is
"to ensure that all children with disabilities have available
to them a free appropriate public education that
emphasizes special education and related services designed
to meet their unique needs . . . ." 20 U.S.C.S 1400(d)(1)(A).

The IDEA limits the circumstances under which a
student can be suspended to very narrow instances in

                                7


which an institution can show by "substantial evidence"
that a student is "substantially likely" to harm herself or
others. 20 U.S.C. S 1415(k)(2)(A). In order to ensure access
to education, a school cannot exclude a child without the
consent of the parents unless it gets administrative or
judicial permission. See Honig, 484 U.S. at 323-24. The
ALJ’s order directing the Board to readmit C.O. after over
seventy days suspension admittedly reconfirmed this
important interest. Appellants argue that the ALJ’s order
thus achieved their main goal, to get C.O. back in school,
and that they did not have any requests regarding C.O.’s
permanent placement.

In contrast, the District Court characterized the ALJ’s
order to reinstate C.O. as a temporary placement of C.O. in
school pending further proceedings, analogous to a stay-
put order, that did not affect the merits of C.O.’s permanent
educational placement. In support of the District Court’s
conclusion, the Board points to a discourse that apparently
occurred during the hearing before the ALJ. According to
the Board, and not refuted by appellants, appellants asked
the ALJ to rule on the propriety of the school’s discipline of
C.O. and the ALJ refused to so rule, stating that such a
determination went beyond the confines of the emergency
hearing. Appellee’s Br. at 13. This response supports the
characterization of the relief granted by the ALJ as a stay-
put order limited to the then-present circumstances.

We note that the fact that there could have been future
proceedings does not necessarily make attorney’s fees
unavailable for this stage of the proceeding. In Bagby v.
Beal, 606 F.2d 411, 415 (3d Cir. 1979), we affirmed an
award of attorney’s fees where the plaintiff succeeded on
her due process claim for a hearing, even though she
ultimately lost at that hearing, because the interim relief
obtained (the hearing) remedied the violation.

The parties do not dispute that "a prevailing party can be
awarded fees before the conclusion of protracted litigation."
NAACP v. Wilmington Med. Ctr., Inc., 689 F.2d 1161, 1165
(3d Cir. 1982). "A prevailing party must be one who has
succeeded on any significant claim affording it some of the
relief sought, either pendent lite or at the conclusion of the
litigation." Garland, 489 U.S. at 791. However, an interim

                                8


award is available "only when a party has prevailed on the
merits of at least some of his claims." Hanrahan v.
Hampton, 446 U.S. 754, 757-58 (1980).2

Several courts of appeals have held that a party cannot
be a prevailing party if the interim relief received is not
merit-based. See Bd. of Educ. of Oak Park v. Nathan R., 199
F.3d 377, 382 (7th Cir. 2000) (holding that the"invocation
of the stay-put provision of the IDEA does not entitle the
party to attorneys’ fees"); Christopher P. by Norma P. v.
Marcus, 915 F.2d 794, 804-05 (2d Cir. 1990) (finding that
in the grant of a temporary restraining order, the ALJ did
not make a determination on the merits or alter the legal
relationship between the parties, but only preserved the
status quo until a decision was rendered on the merits);
Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997)
(concluding that "[w]hen a party receives a stay or
preliminary injunction but never obtains a final judgment,
attorney’s fees are proper if the court’s action in granting
the preliminary injunction is governed by its assessment of
the merits"); Foreman v. Dallas County, 193 F.3d 314, 323
(5th Cir. 1999) ("A temporary restraining order is a ‘stay
put,’ equitable remedy that has as its essential purpose the
preservation of the status quo while the merits of the cause
are explored through litigation. As such, a temporary
restraining order cannot constitute the type [of] merit-based
relief that affords a plaintiff prevailing party status.").

The District Court relied on J.C. v. Mendham Township
Board of Education, 29 F. Supp. 2d 214 (D.N.J. 1998), for
support. In J.C., the district court did not award attorney’s
fees to the parents where the school had agreed to the
parents’ demand for continued placement at a private
school pending the final resolution of his case. Id. at 221-
22. The district court concluded that the plaintiff was not
entitled to attorney’s fees when she received "no relief other
_________________________________________________________________

2. Appellants argue that the relief awarded was not designed to maintain
the status quo since the status quo was that the Board was barring C.O.
from school and that an affirmative act by the ALJ to reinstate C.O. was
necessary. However, arguably C.O.’s "present educational placement" for
stay-put purposes was in the school despite the temporary suspension,
and the status quo was the in-school placement.

                                9
than the preservation of the status quo." Id. at 221; but see
Bayonne Bd. of Educ. v. R.S. by K.S., 954 F. Supp. 933,
943-44 (D.N.J. 1997) (granting attorney’s fees to plaintiffs
who received stay-put order in an emergent hearing).

In this case, the ALJ reached his conclusion only thirteen
days after the Board filed its motion and only six days after
J.O. filed the cross-petition. Notwithstanding that the ALJ
conducted a hearing at which he heard testimony and
reviewed documents, there is no indication that he reached
the merits of the parties’ arguments. The ALJ’s order
explicitly provides that it is effective only until an
appropriate placement could be found for C.O. or until a
"further Order of an [ALJ], or until the issuance of a final
decision in this matter." App. at 14-15.

We do not deprecate the importance of interim relief of
the type received by appellants. The maintenance of a
child’s educational placement is an important aspect of
IDEA. As the amici note, the stay-put provision is a critical
means of enforcing IDEA’s primary goals of providing an
appropriate education to children with disabilities and
preventing the unilateral exclusion of students with
disabilities from school. See Tokarcik v. Forest Hills Sch.
Dist., 665 F.2d 443, 453 (3d Cir. 1981) (finding that the
stay-put provision was "clearly designed to minimize the
detrimental effect of delay in resolving disputes over
educational programs. . . . [and] ensures that a school
cannot eject a child without complying with due process
requirements"). Although parents who achieve favorable
interim relief may be entitled to prevailing party attorney’s
fees as long as the interim relief granted derived from some
determination on the merits, the District Court neither
erred nor abused its discretion in denying the award of fees
in this case.

III.

CONCLUSION

For the reasons set forth above, we will affirm the
decision of the District Court denying appellants attorney’s
fees.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                11
