09-3526-cv Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 30 th day of November, two thousand ten. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 JOSÉ A. CABRANES, 9 JOHN M. WALKER, JR., 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 DAVID STRECK, DONNA STRECK, 14 15 Plaintiffs-Appellants, 16 17 -v.- 09-3526-cv 18 19 BOARD OF EDUCATION OF THE EAST 20 GREENBUSH CENTRAL SCHOOL DISTRICT, 21 22 Defendant-Appellee. * 23 - - - - - - - - - - - - - - - - - - - -X 24
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The Clerk of Court is respectfully instructed to amend the official case caption as shown above.
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1 FOR APPELLANTS: Fred Hutchison 2 Donohue, Sabo, Varley & Armstrong, P.C. 3 24 Aviation Rd. 4 Albany, NY 12212 5 6 FOR APPELLEE: Gregg T. Johnson 7 Jacinda Hall Conboy 8 Lemire Johnson, LLC 9 2534 Route 9, PO Box 2485 10 Malta, NY 12020 11 12 Appeal from a July 16, 2009 order of the United States 13 District Court for the Northern District of New York 14 (Sharpe, J.) awarding Plaintiffs-Appellants $8,640.00 in 15 equitable relief. 16 17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 18 AND DECREED that the district court’s order is VACATED and 19 the case is REMANDED to the district court for proceedings 20 consistent with this summary order. 21 22 Donna and David Streck (“the Strecks”) appeal the 23 district court’s order granting them $8,640.00 based on a 24 judgment from a State Review Officer (“SRO”) that the East 25 Greenbush Central School District (“Greenbush”) had denied 26 David Streck a free appropriate public education for a 27 prolonged period of time in gross violation of the 28 Individuals with Disabilities Education Act (“IDEA”). We 29 assume the parties’ familiarity with the underlying facts, 30 the procedural history, and the issues presented for review. 31 32 Standard of Review. In this case, we review the 33 district court’s interpretation of an SRO’s written award. 34 Interpretation of a legal document is a question of law, 35 which we review de novo. See, e.g., ReliaStar Life Ins. Co. 36 of N.Y. v. Home Depot U.S.A., Inc., 570 F.3d 513, 517 (2d 37 Cir. 2009) (interpretation of contract terms); Cent. States 38 S.E. & S.W. Areas Health & Welfare Fund v. Merck-Medco 39 Managed Care, L.L.C., 504 F.3d 229, 247 (2d Cir. 2007) 40 (interpretation of settlement agreement terms). 41 42 Tuition. The SRO’s order denied the Streck’s request 43 for reimbursement of the costs associated with Dadi’s 44 attendance at Landmark College (“Landmark”) “except to the 45 extent that such costs and/or fees are specifically 46 associated with the implementation of the reading program.”
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1 Application of the Bd. of Educ. of the E. Greenbush Cent. 2 Sch. Dist., No. 03-010, at *3 (N.Y. State Dep’t of Educ., 3 State Review Office, Oct. 29, 2003). With respect to 4 David’s tuition, the district court concluded that only 5 three of the nine courses David took at Landmark were part 6 of the school’s “reading program” within the meaning of the 7 SRO’s award. While the award explicitly forecloses the 8 Strecks’s argument that virtually the entire experience at 9 Landmark should be deemed integral to the school’s “reading 10 program,” we conclude that the district court erred by 11 excluding the two writing courses that David took from the 12 courses included in Landmark’s reading program. Thus, the 13 SRO’s award should be construed to include five of the nine 14 courses David took during his year at Landmark. 15 Accordingly, the base tuition for which Greenbush must 16 reimburse the Strecks is $18,889 ($34,000 x 5/9). 17 18 Scholarship. David received scholarships and financial 19 aid that covered approximately 37% of his tuition during his 20 year at Landmark. The district court correctly reduced the 21 base tuition reward on a pro-rated basis to reflect this. 22 Accordingly, the scholarship-adjusted tuition for which 23 Greenbush must reimburse the Strecks is $11,900 ($18,889 x 24 63%). 25 26 Room/Board/Laptop/Miscellaneous Expenses. As the 27 district court correctly concluded, expenses related to 28 David’s room, board, and miscellaneous college fees at 29 Landmark are not “specifically associated with the 30 implementation of the reading program” at Landmark and 31 should therefore be excluded from the SRO’s award. However, 32 the district court erred in excluding the cost of the laptop 33 and reading-related software David was required to purchase 34 for the reading program at Landmark. This laptop and 35 software was specifically associated with Landmark’s reading 36 program and is therefore included in the SRO’s award. 37 Accordingly, Greenbush must reimburse the Strecks for the 38 cost of the laptop and reading software, totaling $2,125. 39 40 Neuropsychological Evaluation. The district court 41 correctly decided that the Strecks are entitled to a $1,500 42 reimbursement for David’s independent neuropsychological 43 evaluation. 44 45 Interest. The Strecks are entitled to interest on the 46 tuition, laptop, and neuropsychological evaluation expenses 47 they incurred almost a decade ago. Accordingly, for
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1 expenses already incurred, Greenbush must reimburse the 2 Strecks $14,025 plus interest ($11,900 + $2,125). 3 4 The district court shall compute interest on each of 5 these expenses using the standard federal interest 6 calculation methodology in 28 U.S.C. § 1961(a). However, 7 because the Strecks incurred these costs years before the 8 first district court decision in this case, the interest on 9 these expenses should run not from the date of the district 10 court’s first decision (as generally prescribed by 28 U.S.C. 11 § 1961(a)), but from the date on which the Strecks actually 12 paid each expense. 13 14 The Strecks should submit to the district court 15 evidence of the dates on which they paid each tuition, 16 laptop, and neuropsychological evaluation expense. If the 17 Strecks are unable to provide evidence of the month a 18 payment was made, the payment date will be deemed to be the 19 date of the SRO’s award (October 29, 2003). 20 21 Additional Two Years of Compensatory Education. In 22 enacting the IDEA, Congress did not intend to create a right 23 without a remedy. Burr v. Ambach, 863 F.2d 1071, 1078 (2d 24 Cir. 1988), vacated on other grounds sub. nom Sobol v. Burr, 25 491 U.S. 902 (1989), reaff’d, 888 F.2d 258 (2d Cir. 1989). 26 Therefore, when a court grants prospective compensatory 27 education under the IDEA, the prevailing party’s ability to 28 utilize that award cannot turn on its ability to finance the 29 costs of the education awarded. Id. To implement the 30 SRO’s award, the value of the prospective compensatory 31 education must be set aside by the school district and 32 placed in ESCROW for use in paying up-front for the 33 compensatory education expenses. 34 35 The district court shall order Greenbush to open, and 36 maintain for a period of three years, an ESCROW account, 37 which will be used to pay for David’s remaining two years of 38 compensatory reading education. The Strecks are entitled to 39 recover from this ESCROW account only the amount that they 40 actually spend on additional reading education for David, as 41 evidenced by receipts or bills from David’s educator or 42 educational institution. The Strecks shall provide these 43 bill or past receipts to the ESCROW account manager, who 44 will then pay the appropriate party out of the ESCROW 45 account. Any money left in the ESCROW account after three 46 years will be returned to Greenbush.
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1 The amount that Greenbush must place in the ESCROW 2 account--and the maximum that the Strecks can require 3 Greenbush to pay for David’s final two years of compensatory 4 education--is twice the value of the reading program as 5 implemented by Landmark in 2002-2003, excluding the one-time 6 laptop expense and without offset for the one-time 7 scholarship granted by Landmark. Accordingly, Greenbush 8 must place $37,778 ($18,889 x 2) in an ESCROW account for 9 the Strecks to use in providing David with two more years of 10 compensatory education. 11 12 Attorney Fees and Litigation Costs. Compensatory 13 education is an equitable award under the IDEA. Somoza v. 14 N.Y.C. Dep’t of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008). 15 A parent who receives such an award pursuant to an 16 administrative proceeding, such as a hearing in front of an 17 Independent Hearing Officer (“IHO”) or SRO, is considered a 18 “prevailing party” under the IDEA and is entitled to 19 reasonable attorneys’ fees and litigation costs. A.R. v. 20 N.Y.C. Dep’t of Educ., 407 F.3d 65, 73-75 (2d Cir. 2005); 20 21 U.S.C. § 1415(i)(3)(B). Reasonable attorneys’ fees under 22 the IDEA are calculated using the “lodestar” method, 23 “whereby an attorney fee award is derived ‘by multiplying 24 the number of hours reasonably expended on the litigation 25 [by] a reasonable hourly rate.’” A.R., 407 F.3d at 79 26 (citation omitted). The reasonable hourly rate for such 27 calculation is determined by the “rates prevailing in the 28 community in which the action or proceeding arose for the 29 kind and quality of services furnished.” 20 U.S.C. § 30 1415(i)(3)(C). 31 32 The Strecks have been the “prevailing party” at each 33 step of this litigation. Accordingly, they are entitled to 34 the reasonable litigation costs and attorneys’ fees 35 associated with this litigation, including the initial IHO 36 hearing, the SRO appeal, the first and second district court 37 proceedings, the first and present Second Circuit appeals, 38 and any subsequent proceedings required to implement the 39 SRO’s award. The Strecks and their attorneys shall submit 40 to the district court evidence of the litigation costs and 41 attorney hours spent on each of these proceedings. 42 Reasonable litigation costs and attorneys’ fees should be 43 based on the lodestar method and the prevailing local rates 44 for such services.
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1 We hereby VACATE the district court’s order granting 2 the Strecks $8,640.00. We REMAND to the district court for 3 proceedings consistent with this summary order. 4 5 6 7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK