     06-0976-cv
     Medrash v. Riley

1                         UNITED STATES COURT OF APPEALS
2                             FOR THE SECOND CIRCUIT

3                                August Term 2006

4                              Docket No. 06-0976-cv

5      (Argued: May 15, 2007              Decided: October 17, 2007)
6    __________________________________________________________

7    BETH MEDRASH EEYUN HATALMUD,

8                       Plaintiff-Appellee,

9           v.

10   MARGARET SPELLINGS,* in her official
11   capacity as Secretary of the
12   Department of Education,

13                      Defendant-Appellant.

14   __________________________________________________________

15   Before:      NEWMAN, MINER, and KATZMANN, Circuit Judges.

16        Appeal from a summary judgment in favor of plaintiff entered
17   in the United States District Court for the Southern District of
18   New York (Owen, J.) directing the payment with interest of the
19   portion of Pell Grant funds that was withheld by defendant
20   pursuant to a Settlement Agreement pending resolution of
21   plaintiff’s ultimately unsuccessful challenge to the termination
22   of its eligibility to participate in the Pell Grant Program.
23
24          Reversed and remanded.




            *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Secretary of the Department of Education Margaret Spellings is
     automatically substituted for former Secretary of the Department
     of Education Richard W. Riley as defendant-appellant in this
     case.

                                         1
1    NATHAN LEWIN (Alyza D. Lewin, on the
2    brief), Lewin & Lewin, LLP,
3    Washington, D.C., for Plaintiff-
4    Appellee.


 5   SHEILA M. GOWAN (Michael J. Garcia,
 6   United States Attorney for the
 7   Southern District of New York;
 8   Kathy S. Marks, Assistant United
 9   States Attorney, of counsel), New
10   York, New York, for Defendant-
11   Appellant.




       2
1    MINER, Circuit Judge:

2         Richard W. Riley, originally named as defendant-appellant,

3    in his official capacity as the then-Secretary of the United

4    States Department of Education (“DOE”), appealed from a summary

5    judgment entered in the United States District Court for the

6    Southern District of New York (Owen, J.) in favor of plaintiff-

7    appellee Beth Medrash Eeyun Hatalmud (“BMEH”), an educational

8    institution devoted to Judaic and Rabbinical studies.      The

9    judgment directed payment with interest of the portion of Pell
10   Grant funds that was withheld by the DOE, pursuant to a

11   Settlement Agreement, pending resolution of BMEH’s ultimately

12   unsuccessful challenge to the termination of its eligibility to

13   participate in the Pell Grant Program.      The District Court

14   determined that the funds withheld should be treated as a bond

15   posted by BMEH under the security provision of a temporary

16   restraining order previously issued but subsequently dissolved.

17   We disagree with that determination for the reasons that follow.
18                               BACKGROUND

19        The Pell Grant Program (the “Program”), established under

20   Title IV of the Higher Education Act of 1965, provides grants to

21   assist students in need of financial aid for meeting the costs of

22   their post-secondary education.       See 34 C.F.R. § 690.1.   Under

23   the Program, the DOE has discretion to provide funds, through

24   several different methods, to institutions participating in the

25   Program.   See id. § 668.162(a)(1).     The method of funding for

26   BMEH was called the “reimbursement method,” in which the school


                                       3
1    paid student awards from institutional funds and later sought

2    reimbursement from the DOE.     Id. § 668.162(d)(1).

3         In February, 1994, the DOE issued a notice for the

4    termination of BMEH’s eligibility to participate in the Pell

5    Grant Program.    The basis for the termination was the DOE’s

6    finding that BMEH did not prepare its students for employment in

7    a recognized occupation, a requirement for Pell Grant

8    eligibility.     Hatalmud v. Riley, No. 97-cv-2035 (RO), 1998 WL

9    1570, at *1 (S.D.N.Y. Apr. 3, 1998).    On July 10, 1995, BMEH
10   brought an action in the United States District Court for the

11   Southern District of New York challenging the DOE’s decision that

12   it would not pay BMEH’s requests for reimbursement pending an

13   administrative decision on whether BMEH’s eligibility was

14   properly terminated.    When BMEH brought its action, it

15   simultaneously sought a temporary restraining order (“TRO”)

16   requiring the DOE to pay two requests for reimbursement that

17   previously had been submitted and remained unpaid.

18        At the hearing on the TRO, the District Court, in granting
19   BMEH’s reimbursement requests, stated:    “[I]t seems to me that it

20   is in order to direct that payments be forthwith resumed, made or

21   otherwise.”    The DOE thereupon requested a bond, in accordance

22   with Fed. R. Civ. P. 65(c), to secure the DOE for any costs and

23   damages it might suffer if the TRO were found to be wrongfully

24   issued.   BMEH’s counsel suggested that the DOE “hold back ten

25   percent of the payments as a bond” because “[t]here are loans to

26   everyone.”    Adopting this suggestion, the District Court directed


                                        4
1    the DOE to withhold ten percent of the ordered reimbursements as

2    a Rule 65(c) bond.    On July 14, 1995, the court issued a written

3    Order granting the TRO, requiring the DOE to release “all monies

4    due to [BMEH],” and, “[i]n lieu of a bond,” permitting the DOE to

5    withhold “ten percent (10%) of the monies currently held by it.”

6    The Order also scheduled a hearing on the preliminary injunction

7    sought by BMEH to require future reimbursement payments pending

8    trial.   On July 28, 1995, prior to any further proceedings, the

9    parties resolved their dispute in its entirety and entered into a
10   Settlement Agreement.

11        Under the terms of the Settlement Agreement, the DOE

12   admitted neither the factual allegations in BMEH’s complaint nor

13   liability on account of any of the facts or circumstances alleged

14   in the complaint.    The parties agreed to seek expedited

15   proceedings in the pending administrative proceedings relating to

16   the DOE’s proposed termination of BMEH’s participation in the

17   Pell Grant Program.    The DOE also undertook to pay otherwise

18   eligible claims for reimbursement submitted by BMEH during the
19   pendency of the termination proceedings, except that the DOE

20   “[would] be entitled to retain ten percent (10%) of the amount

21   thereof pending final agency decision.”

22        The parties agreed that the TRO would be dissolved and that

23   “no force and effect” would be given “to the findings made on the

24   record” by the District Court in connection with the TRO

25   application.   Finally, the parties stipulated that the action be

26   dismissed with prejudice and without costs and that any dispute


                                       5
1    relating to compliance with the terms of the Settlement be

2    resolved by the District Court without the need to file a new

3    action.    The Stipulation of Settlement was “So Ordered” by the

4    District Court on August 3, 1995.

5         Thereafter, an Administrative Law Judge (“ALJ”) held a

6    hearing on BMEH’s eligibility to participate in the Pell Grant

7    Program.    On April 23, 1996, the ALJ issued a ruling that BMEH

8    was not eligible to participate in the Program.    Hatalmud v.

9    Riley, No. 97-cv-2035 (RO), 1997 WL 223075, at *2 (S.D.N.Y. May
10   2, 1997).    Following a remand by the Secretary of Education for a

11   further elaboration of the ALJ’s decision, the ALJ issued a more

12   detailed decision on September 25, 1996.    In the decision on

13   remand, the ALJ reiterated his determination that BMEH was

14   properly terminated from the Pell Grant Program, finding that,

15   although “some students have found employment as teachers in the

16   field of Orthodox Jewish education . . . , these programs were

17   neither intended nor designed to prepare students for gainful

18   employment in a recognized occupation.”    In re Hatalmud, No. 97-
19   94-SP, 1998 EOHA Lexis 30, at *3 (Dep’t of Educ. June 16, 1998).

20   The ALJ accordingly concluded that BMEH did not meet the

21   definition of an eligible institution.    On January 27, 1997, the

22   ALJ’s decision was affirmed by the Secretary of Education as the

23   final agency decision, and BMEH’s participation in the Pell Grant

24   Program was terminated as of that date.    The Secretary’s

25   termination decision was upheld by the District Court in an Order

26   dated April 2, 1998.    Hatalmud v. Riley, No. 97-cv-2035 (RO),


                                       6
1    1998 WL 157059, at *4 (S.D.N.Y. Apr. 2, 1998).   BMEH did not

2    appeal from that Order.

3         Meanwhile, on March 12, 1997, the DOE had issued a Final

4    Program Review Determination (“FPRD”), concluding that BMEH was

5    liable to the DOE for $16,403,631, which the DOE had calculated

6    to be the amount of federal funds disbursed to BMEH under the

7    Pell Grant Program since BMEH began its participation.   The DOE

8    ruled that, because BMEH’s programs were ineligible for the Pell

9    Grant Program, BMEH was required to refund to the DOE all federal
10   funds it had received under the Program.   On April 25, 1997, BMEH

11   advised the DOE that its calculation was incorrect and that the

12   liability should be reduced because the DOE had included the

13   $452,008 that the DOE had retained pursuant to the Settlement

14   Agreement.   BMEH did not assert any right to the $452,008.    The

15   DOE agreed with BMEH’s calculation, and, on May 7, 1997, issued a

16   revised FPRD assessing a liability of $15,949,148, reducing the

17   prior assessment by $452,008 to account for the retained amount.

18   The DOE further agreed to reduce the liability to $15,764,431
19   based on additional calculations submitted by BMEH.

20        On June 27, 1997, BMEH challenged the DOE’s liability

21   assessment and requested an administrative hearing.   In its

22   statement of “Issues and Facts in Dispute,” BMEH renewed its

23   argument that its programs were eligible for federal funds and

24   further argued that it would be unfair to require it to repay the

25   funds because the money was received when it believed its

26   educational program was eligible.    BMEH did not in its statement


                                      7
1    assert any claim for, or otherwise contest, the DOE’s right to

2    keep the $452,008 retained pursuant to the Settlement Agreement.

3    For its part, the DOE continued to take the position that BMEH’s

4    program had been ineligible from its inception, and, therefore,

5    that the federal funds had been improperly spent and must be

6    returned.

7         On June 16, 1998, the Chief Administrative Law Judge, in a

8    written opinion, addressed the issues raised in BMEH’s appeal.

9    The Chief Judge reaffirmed, on the grounds of res judicata, the

10   previous determination that BMEH was ineligible to participate in

11   the Pell Grant Program.   Hatalmud, 1998 EOHA Lexis 30, at *7 n.3.

12   However, the Chief Judge “conclude[d] that absent any evidence of

13   fraud or misleading information, and based on the fact that the

14   statutory provision and the regulations in question are subject

15   to varying interpretation, it would be unfair and impermissible,

16   and possibly a violation of substantive due process, to direct

17   repayment of the amount in issue.”   Id. at *14.   Accordingly, the

18   Chief Administrative Judge ordered “that Beth Medrash Eeyun
19   Hatalmud is relieved of any obligation to repay the United States

20   Department of Education the sum of $15,949,148.”    Id.

21        On review, in his decision dated April 1, 1999, the

22   Secretary of Education disagreed with the Chief Judge only to the

23   extent of finding that the “standard [for program eligibility] is

24   long-standing and was not newly interpreted when applied in this

25   case,” and “that evidence of fraud or misleading information is

26   not necessary to establish that a given program is ineligible to

                                      8
1    receive federal funds.”   Accordingly, the Secretary, rejecting

2    BMEH’s attempt to relitigate the finding of ineligibility,

3    reiterated previous determinations by stating: “BMEH’s programs

4    do not meet the standards of an eligible vocational program,

5    under the applicable statute.”    However, the Secretary found

6    that, “[n]otwithstanding BMEH’s ineligibility, . . . the specific

7    facts of this case do not warrant the imposition of financial

8    liability.”   Accordingly, the Secretary concluded his review by

9    “affirm[ing] [the Chief Administrative Law Judge’s] decision to
10   relieve BMEH of financial liability but impose[d] a fine in the

11   amount of $50,000.”

12         Over five years later, on March 17, 2005, in the action it

13   originally had brought to challenge the denial of reimbursement,

14   BMEH moved in the District Court for an Order requiring the DOE

15   to pay BMEH the $452,008 that the DOE had retained pursuant to

16   the Settlement Agreement.   Hatalmud v. Riley, No. 95-cv-5104

17   (RO), 2005 WL 3370500, at *1 (S.D.N.Y. Dec. 9, 2005).    BMEH

18   argued in its motion that the amount sought was a “bond” that
19   BMEH had posted as “security” pursuant to Fed. R. Civ. P. 65(c).

20   Id.   BMEH argued that, since all matters between the parties were

21   resolved, the DOE must return the “bond.”    BMEH also claimed that

22   it was entitled to interest on the theory that the DOE was merely

23   holding the funds as a bond.     Hatalmud, 2005 WL 3370500, at *1.

24         In response, the DOE argued that, under the Settlement

25   Agreement the parties resolved all of the claims asserted in

26   BMEH’s complaint, upon which the TRO was based, and that the


                                       9
1    $452,008 the DOE retained was in consideration of the DOE’s

2    decision to forgo further litigation related to whether the DOE

3    was required to pay BMEH’s reimbursement requests while BMEH’s

4    eligibility to participate in the Pell Grant Program was being

5    determined in the administrative termination proceedings --

6    proceedings that BMEH ultimately lost.

7         The District Court ruled in BMEH’s favor, concluding that

8    the Settlement Agreement imposed an obligation on the DOE to pay

9    BMEH $452,008.   Hatalmud, 2005 WL 3370500, at *1.    In addition
10   the court ruled that, since the $452,008 was BMEH’s money held by

11   the DOE, BMEH was entitled to interest.    Id.   Under the judgment,

12   the interest would be calculated from the dates upon which the

13   DOE retained the ten percent from BMEH’s reimbursement requests.

14   Id. at *1–2.   The court also vacated the $50,000 fine, ruling

15   that it had no support in the record and was imposed without a

16   hearing and without reasons given.    That ruling is not in issue

17   here.   Id. at *2.

18        In interpreting the Settlement Agreement, the District Court
19   rejected the DOE’s argument “that the [$452,008] is not, in fact,

20   a `bond’ or `security’ posted under Rule 65(c) of the Federal

21   Rules of Civil Procedure, but rather, is a benefit of the bargain

22   that the DOE received . . . in exchange for its promise to pay

23   BMEH’s requests for reimbursement pending final agency decision

24   in the administrative proceedings.”    Id. at *1.    The court

25   concluded that the “only reasonable understanding” of the

26   language in the Settlement Agreement “is as a carry-over of the


                                     10
1    security provisions that governed the TRO.”       Id.   The court noted

2    that, at the TRO hearing, it had directed ten percent of the

3    reimbursement requests to be held as a Rule 65(c) bond, and had

4    issued a written order three days later that “unequivocally”

5    provides that the DOE could withhold that amount “[i]n lieu of a

6    bond.”    Id.

7         The District Court further noted that the Settlement

8    Agreement, “signed only fourteen days later incorporated a

9    similar provision, prescribing that ten percent would be withheld
10   ‘pending final agency decision.’”      Id.   Finally, because the

11   District Court found that the $452,008 retained constituted

12   “funds belonging to BMEH,” it concluded that an award of interest

13   would not be “an interest award against the United States” but an

14   award “of interest earned on BMEH’s money that BMEH was entitled

15   to receive years prior, and which has since been in the temporary

16   custody of the government.”    Id.    This timely appeal by the DOE

17   ensued.

18                                 ANALYSIS

19        On appeal, BMEH contends that its claim to the retained

20   funds should be governed by the general rule that a district

21   court’s interpretation of ambiguous language should be affirmed

22   unless clearly erroneous.   It argues that this rule “applies with

23   even greater force” in this case, because the District Court so

24   ordered the Settlement Agreement only two weeks after granting

25   the TRO and therefore is in the best position to interpret the

26   settlement terms.   BMEH notes that the percentage of payments

                                      11
1    retained pursuant to the settlement was the same as the

2    percentage retained in lieu of bond pursuant to the TRO.

3         In further support of the judgment below, BMEH contends that

4    the “pending final agency decision” provision relative to the ten

5    percent retainage “do[es] not suggest that the DOE may keep the

6    withheld funds but only that they may be escrowed during the

7    administrative proceeding.”   Apparently, the DOE maintained a

8    separate escrow account for the withheld funds, and, according to

9    BMEH, this “demonstrates that the DOE viewed the withheld funds
10   as belonging to BMEH, not to the DOE, and as having been paid to

11   BMEH by the transfer to the escrow account.”   BMEH asserts that

12   the withheld funds were “only kept separately in case there would

13   be some liability by BMEH at the end of the process.”   Finally,

14   BMEH urges on appeal that, because it is the owner of the

15   retained funds, it is entitled to interest earned on the funds

16   despite the rule of sovereign immunity prohibiting the recovery

17   of interest against the United States.

18        We review de novo the District Court’s conclusions of law
19   arising out of its interpretation of Settlement Agreement terms.

20   See Omega Eng’g, Inc. v. Omega, S.A., 432 F.3d 437, 443 (2d Cir.

21   2005).   In doing so, we apply the same tests as are applied by

22   the District Court.   See Compagnie Financiere de CIC et de

23   L’Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith,

24   Inc., 232 F.3d 153, 157 (2d Cir. 2000).   It is only where the

25   District Court undertakes the interpretation of an ambiguity in

26   an agreement, in the presence of extrinsic evidence of meaning,


                                     12
1    that we apply a clearly erroneous standard of review.     See U.S.

2    Naval Inst. v. Charter Communications, Inc., 875 F.2d 1044, 1049

3    (2d Cir. 1989); Antilles S.S. Co. v. Members of American Hull

4    Ins. Syndicate, 733 F.2d 195, 204 (2d Cir. 1984) (Newman, J.,

5    concurring).   But whether or not an ambiguity exists is a

6    question of law that we review de novo.    See Tourangeau v.

7    Uniroyal, Inc., 101 F.3d 300, 306 (2d Cir. 1996).

8         In disagreement with BMEH, we see no ambiguity in the

9    Settlement Agreement in regard to the disposition of the withheld
10   funds and so accord no deference on review to the District

11   Court’s interpretation.    The fact that the Agreement was “so

12   ordered” by the District Court does not affect our de novo

13   examination here.    The District Court’s interpretation clearly

14   was informed by its erroneous conclusion that the provision for

15   10% withholding was “a carry-over of the security provisions that

16   governed the TRO.”    Hatalmud, 2005 WL 3370500, at *1.

17        While the District Court characterized its conclusion as the

18   “only reasonable understanding” of the withholding provision of
19   the Settlement Agreement, id., the parties specifically agreed to

20   the dissolution of the TRO and “that they will give no force and

21   effect to the findings made on the record by [the District

22   Court].”   Accordingly, the Settlement Agreement, as “so ordered”

23   by the District Court, nullified the 10% “withholding as

24   security” provision that became effective when the TRO was

25   issued, and the District Court’s observations that the Agreement

26   contained a “similar provision” and was “signed only fourteen


                                      13
1    days later” therefore are without significance.    Id. at *1–2.

2         Turning to the Settlement Agreement itself, there is no

3    language anywhere within its four corners evidencing, in the

4    words of the District Court, “a carry-over of the security

5    provisions that governed the TRO.”   Id. at *2.   Moreover, a

6    security bond would have been pointless after the execution of

7    the Settlement Agreement because the purpose of such a bond is to

8    provide “for the payment of such costs and damages as may be

9    incurred or suffered by any party who is found to have been
10   wrongfully enjoined or restrained” by a TRO or a preliminary

11   injunction during pending litigation.    See Fed. R. Civ. P. 65(c);

12   see also Commerce Tankers v. Nat’l Maritime Union of America, 553

13   F.2d 793, 800 (2d Cir. 1977).   The following Stipulation included

14   in the Settlement Agreement put an end to the pending litigation:

15   “The action of the plaintiff against the defendant is hereby

16   dismissed with prejudice and without costs.”

17        As in all such agreements, the Settlement Agreement here

18   represented a compromise between conflicting claims.   BMEH agreed
19   to forego further District Court litigation and, in return, the

20   DOE agreed to pay ninety percent of BMEH’s reimbursement requests

21   pending administrative determination of its entitlement to

22   participate in the Pell Grant Program.   The parties agreed that

23   their dispute would go forward to an administrative

24   determination.   (A later challenge by BMEH to the administrative

25   determination was made and rejected in the District Court.)

26   “[The] agreement reached . . . embodie[d] a compromise; in


                                     14
1    exchange for the saving of cost[s] and elimination of risk, the

2    parties each gave up something they might have won had they

3    proceeded with the litigation.”    United States v. O’Rourke, 943

4    F.2d 180, 186-87 (2d Cir. 1991) (quoting United States v. Armour

5    & Co., 402 U.S. 673, 681–82 (1971)).

6         Referring generally to Pell Grant Program future payments to

7    be made to BMEH, the ten percent withholding provision in the

8    Agreement simply provides “that [the DOE] will be entitled to

9    retain ten percent (10%) of the amount thereof pending final
10   agency decision.”    In examining this provision, we recognize that

11   “[t]he cardinal principle for the construction and interpretation

12   of . . . contracts . . . is that the intention of the parties

13   should control.”    SR Int’l Bus. Ins. Co. v. World Trade Ctr.

14   Props., LLC, 467 F.3d 107, 125 (2d Cir. 2006)(internal quotation

15   marks omitted).    Moreover, “the best evidence of intent is the

16   contract itself; if an agreement is complete, clear and

17   unambiguous on its face, it must be enforced according to the

18   plain meaning of its terms.”    Eternity Global Master Fund, Ltd.
19   v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir.

20   2004)(internal quotation marks and brackets omitted).    The

21   language here is complete, clear and unambiguous and evidences

22   the clear intention of the parties:    Disbursement of the withheld

23   funds is to abide the event of the final DOE determination; if

24   the DOE were to prevail in the administrative proceeding, it

25   would retain the funds; if BMEH were to prevail, the funds would

26   be paid over to it.


                                       15
1         The final DOE determination, manifested in the decision of

2    the Secretary of Education dated April 1, 1999, and unchallenged

3    here by BMEH, conclusively determined that BMEH was ineligible

4    for participation in the Pell Grant Program ab initio.       According

5    to this decision, BMEH received almost sixteen million dollars

6    over the years in Pell Grants, including $4.5 million paid while

7    the termination proceedings were pending.     Rather than requiring

8    the repayment of these funds, and apparently strictly as a matter

9    of grace, the Secretary forgave the debt:    “Notwithstanding
10   BMEH’s ineligibility, . . . the specific facts of this case do

11   not warrant the imposition of financial liability.”     This

12   forgiveness of debt followed the Secretary’s rejection of the

13   reasons given by the Chief Administrative Judge for relieving

14   BMEH’s repayment obligation -- the absence of fraud and

15   misleading information on the part of BMEH and the “varying

16   interpretation[s]” of the applicable statutory provisions and

17   regulations.   Hatalmud, 1998 EOHA Lexis 30, at *10.   The

18   Secretary’s decision relieved BMEH of an enormous debt, ex aequo
19   et bono, and it does not lie in the mouth of BMEH to call for the

20   payment of money which it never was entitled to in the first

21   place.

22        BMEH’s argument that the DOE maintained the withheld funds

23   in a special escrow account and therefore viewed the funds as

24   belonging to BMEH is unavailing.     BMEH never was entitled to any

25   Pell Grant funds, whether withheld or paid over.    In this regard,

26   it is noteworthy that the Secretary of Education did not relieve


                                     16
1    BMEH from legal liability; he merely determined that “the

2    specific facts of this case do not warrant the imposition of

3    financial liability.”   (emphasis supplied).

4         As we have observed, both parties benefitted from the

5    Settlement Agreement, which includes the “winner take all”

6    element of the ten percent withholding provision.   See EEOC v.

7    Local 40, Int’l Ass’n Bridge Workers, 76 F.3d 76, 79–81 (2d Cir.

8    1996).   BMEH acknowledged the purpose and intent of that

9    provision by objecting to the DOE’s calculation of the entire
10   Pell Grant liability for failure to reduce the amount of total

11   liability by the $452,008 of withheld money in the DOE’s

12   possession.   It was not until five years later that BMEH reversed

13   course and concocted the theories that led to the judgment that

14   is the subject of this appeal.

15        In light of the foregoing, it is unnecessary for us to

16   address the issue raised by the District Court’s award of

17   interest against the United States.
18                               CONCLUSION

19        The judgment of the District Court is reversed, and the case

20   is remanded for the entry of judgment in favor of defendant-

21   appellant.




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