11-3589-cv (L) J.S., S.S. on behalf of Z.S. v. Carmel Central School District 

### 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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 2 the 8 thday of November, two thousand twelve. 3 4 PRESENT: JOHN M. WALKER, JR., 5 DEBRA ANN LIVINGSTON, 6 CHRISTOPHER F. DRONEY, 7 Circuit Judges

. 8 9 10 J.S., S.S. ON BEHALF OF Z.S. 11 Plaintiffs-Appellants-Cross-Appellees , 12 13 -v.- Nos. 11-3589-cv (Lead) 11-4827-cv(XAP) 14 15 CARMEL CENTRAL SCHOOL DISTRICT, 16 Defendant

- Appellee-Cross-Appellant

. 17 18 19 20 GARY S. MAYERSON, Mayerson & Associates, New York, New 21 York, for Plaintiffs-Appellants-Cross-Appellees

. 22 23 MARK C. RUSHFIELD, Shaw, Perelson, May & Lambert, LLP, 24 Poughkeepsie, New York,for Defendant-Appellee-Cross-Appellant

. 25 26 27 Appeal from a judgment of the United States District Court for the Southern District of New 28 York (Vincent L. Briccetti, Judge ). 292 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 1 DECREED that the judgment of the district court be AFFIRMED

. 2 Plaintiffs-Appellants-Cross-Appellees J.S. and S. S. on behalf of Z.S. (“J.S.”), and Defendant3 Appellee-Cross-Appellant Carmel Central School District (“Carmel”) appeal from a judgment 4 granting J.S.’s motion for reconsideration of attorneys’ fees as the prevailing party in an 5 administrative action under the Individuals with Disabilities Education Improvement Act (“IDEA”), 6 20 U.S.C. § 1400 et seq. In the underlying administrative action, an Impartial Hearing Officer 7 (“IHO”) determined that Carmel denied a free and appropriate public education (“FAPE”) to Z.S.; 8 Carmel then appealed to the State Review Officer (“SRO”), who found the ac tion moot. On October 9 21, 2010, J.S. filed a motion to compel Carmel to pay attorneys’ fees in the district court. The 10 issues on appeal are: (1) whether J.S. is the prev ailing party; (2) whether the district court properly 11 granted J.S.’s motion for reconsideration; and (3) whether the district court correctly determined 12 J.S.’s attorney’s rate. We assume the parties’ familiarity with the underlying facts, procedural 13 history of the case, and issues on appeal. 14 1. Prevailing Party under the IDEA 15 We review a district court’s grant of attorn ey fees under the IDEA for abuse of discretion, 16 but we review any interpretation of the fee statute itself, including fee-shifting provisions, de novo

. 17 A.R. ex rel. R.V. v. N.Y. City Dep’t of Educ. , 407 F.3d 65, 73 (2d Cir. 2005). Carmel challenges the 18 district court’s determination that J.S. was the prevailing party under IDEA § 1415(i). See 20 U.S.C. 19 § 1415(i)(3)(B)(i)(I) (2006) (authorizing a discretionary award of reasonable attorneys’ fees to any 20 prevailing party who is the parent of a child with a disability). Applying Buckhannon Board & Care 21 Home, Inc. v. West Virginia Department of Health & Human Resources , 532 U.S. 598 (2001), our 223 Court requires “a prevailing party” to obtain a judicially sanctioned “material alteration of the legal 1 relationship of the parties.” A.R. ex rel. R.V. , 407 F.3d at 67 (internal quot ation marks and citation 2 omitted). An IHO decision on the merits constitutes “administrative imprimatur” sufficient to 3 change the legal relationship between the partie s and render the prevailing party eligible for an 4 award of reasonable attorney’s fees. Id. at 76. 5 In challenging the prevailing party determination, Carmel asserts that because the school 6 district already paid for Z.S.’s private edu cation for the 2007-2008 school year pursuant to IDEA’s 7 pendency provision, the IHO decision in May 2009 did not effect a material change between the 8 parties. See 20 U.S.C. § 1415(j) (requiri ng the parties to maintain the child’s then-current 9 educational placement during the pendency of any proceedings). However, the IHO’s determination 10 on May 29, 2009 not only declared the 2007-2008 I ndividualized Education Plan (“IEP”) 11 inadequate, it also endorsed the ABA method utilized by Z.S.’s private school over the TEACCH 12 program proposed by Carmel for Z.S.’s schooling. Though Z.S. was entitled to and received 13 pendency for the 2008-2009 school year, the parties’ disputes over the 2008-2009 and 2009-2010 14 school years were resolved one month after the SR O decision, when the parties agreed to transition 15 Z.S. back to public school with a plan approved by all parties and supported with a transition plan 16 from CCCD. Contrary to Carmel’s assertions, the IHO decision declaring the 2007-2008 IEP 17 inadequate effected a material change betweenthe parties in connection with the subsequent 18 negotiations. 19 Our Court recognizes a distinction between clai ms for tuition reimbursement pursuant to the 20 pendency provision and claims for tuition reimbursement pursuant to an administrative 21 determination that a school district has failed to provide a FAPE. See Mackey ex rel. Thomas M. 221 In O’Shea II, the district court declared the parents’ request for attorney’s fees moot as to the second of two back-to-back due process requests seeking relief from a school district’s proffered IEP. The court determined that the second action was moot because the SRO’s decision in the first action established the child’s appropriate placement and, thus, the child’s entitlement to pendency at least through the date of the SRO decisions, which were rendered one day apart and well after both school years had ended. See O’Shea II, 521 F. Supp. 2d 284 (S.D.N.Y. 2007). Without expressing a view as to the correctness of the holding in O’Shea II, the instant case is distinguishable in that there was no other simultaneous action that could have provided the parents with tuition reimbursement for the 2007-2008 school year. O’Shea II ’s mootness holding is thus inapplicable to the present situation.
4 v. Bd. of Educ. for Arlington Cent. Sch. Dist. , 386 F.3d 158, 160-61, supplemented sub nom. Mackey 1 v. Bd. of Educ. for Arlington Cent. Sch. Dist. , 112 F. App’x 89 (2d Cir. 2004) (holding that though 2 the school district’s plan was adequate the pare nts were still entitled to tuition reimbursement under 3 the pendency provision). Carmel claims that the IHO decision did not constitute a material 4 alteration in the parties’ legal relationship because of pendency, referencingO’Shea v. Board of 5 Education , 521 F. Supp. 2d 284 (S.D.N.Y. 2007) (“ O’Shea II ”). O’Shea II, however, is inapposite. 1 6 Indeed, Carmel’s argument that pursuit of relie f before the IHO was unnecessary is belied by 7 Carmel’s own conduct in litigating the 2007-2008 decision through May 2009 at the IHO and then 8 appealing to the SRO, all after paying for Z. S.’s private school attendance for the 2007-2008 school 9 year pursuant to pendency requirements. Becau se the IHO decision declaring Carmel’s 2007-2008 10 IEP inadequate was an administrative determination on the merits, and because the decision changed 11 the relationship between the parties, J.S. is eligib le for attorney fees as the prevailing party under 12 the IDEA. 13 2. Motion for Reconsideration 14 Carmel next argues that the district court erred by granting J.S.’s motion for reconsideration 15 in connection with the fees it originally awarded. We review a district court’s decision to grant a 165 motion for reconsideration for abuse of discretion. Transaero, Inc. v. La Fuerza Aerea Boliviana , 1 162 F.3d 724, 729 (2d Cir. 1998); Nemaizer v. Baker , 793 F.2d 58, 61-62 (2d Cir. 1986). Under Rule 2 60(b), a district court may relieve a party from final judgment for mistake, newly discovered 3 evidence, fraud, a void or discharged judgment, or“any other reason that justifies relief.” Fed. R. 4 Civ. P. 60(b). The district court granted the motion for reconsideration based on an interim Second 5 Circuit decision dictating the proper method for calculating attorney’s fees, a Second Circuit 6 decision affecting the lodestar rate for the partic ular attorney in question, and hours worked but not 7 included in the initial calculations. We find no abuse of discretion in the district court’s 8 determination to grant 60(b) relief in light of these considerations. 9 3. Calculation of Reasonable Attorney’s Fees 10 Finally, J.S. argues that the district court awarded inadequate fees to his attorney by virtue 11 of setting an hourly rate that was too low. We revi ew a district court’s grant of attorneys’ fees under 12 the IDEA for abuse of discretion. A.R. ex rel. R.V. , 407 F.3d at 73. In its decision reconsidering the 13 prior attorneys’ fees award, the district court utilized the lodestar approach set forth in Millea v. 14 Metro-North Railroad Co. , 658 F.3d 154, 167 (2d Cir. 2011) (following Perdue v. Kenny A. ex rel. 15
Winn , 130 S. Ct. 1662, 1673 (2010)). The lodestar is the “product of a reasonable hourly rate and 16 the reasonable number of hours required by the case,” and the district court has discretion to 17 determine what constitutes a reasonable fee. Id. at 166 (citing Arbor Hill Concerned Citizens 18 Neighborhood Assoc. v. Cnty. of Albany , 522 F.3d 182, 183 (2d Cir. 2008)). The district court 19 considered the prevailing market rate in the co mmunity by drawing upon other Southern District of 20 New York cases granting attorneys’ fees to education law litigators, and the court also considered 21 J.S.’s attorney’s skills and expertise. We find no abuse of discretion in the district court’s well- 226 reasoned determination to award $415 per hour to J.S.’s attorney nor in its conclusion that the 1 complexity and novelty of the case would be refl ected in the number of billable hours rather than 2 in a lodestar adjustment. 3

*** 4 We have considered all of the parties’ re maining arguments and find them to be without 5 merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED

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FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9