     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

                *
               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
 9
10




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