Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist.
09-3526-cv
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. *
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24
*
The Clerk of Court is respectfully instructed to
amend the official case caption as shown above.
1
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.”
2
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
3
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.
47
4
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.
45
5
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
6