A.D. et al v. Department of Education, State of Hawaii

Filing 62

ORDER Denying Motion For Stay Of Enforcement Of October 25, 2012 Stay Put Order Pending Appeal re 53 . Signed by JUDGE J. MICHAEL SEABRIGHT on 1/7/13. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

A.D., by and through his parent L.D., )
)
Plaintiff,
)
)
vs.
)
)
DEPARTMENT OF EDUCATION, )
STATE OF HAWAII,
)
)
Defendant.
)
_______________________________ )

CIVIL NO. 12-00307 JMS-KSC
ORDER DENYING MOTION FOR
STAY OF ENFORCEMENT OF
OCTOBER 25, 2012 STAY PUT
ORDER PENDING APPEAL

ORDER DENYING MOTION FOR STAY OF ENFORCEMENT OF
OCTOBER 25, 2012 STAY PUT ORDER PENDING APPEAL
I. INTRODUCTION
On October 25, 2012, the court granted Plaintiff A.D., by and through
his parent L.D.’s (“Plaintiff”) Motion under 20 U.S.C. § 1415(j) (“the Stay Put
Order”), requiring Defendant Department of Education, State of Hawaii
(“Defendant”) to maintain Plaintiff’s current educational placement at Loveland
Academy during the pendency of these proceedings. See A.D. v. Dep’t of Educ.,
2012 WL 5292865 (D. Haw. Oct. 25, 2012). On November 23, 2012, Defendant
appealed the Stay Put Order, Doc. No. 38, and proceedings are now pending in the

Ninth Circuit Court of Appeals (Appeal No. 12-17610).1
On December 19, 2012 (almost two months after entry of the Stay Put
Order), Defendant filed the instant Motion for Stay of Enforcement of the October
25, 2012 Stay Put Order Pending Appeal. Doc. No. 53. The court finds the matter
suitable for decision without an oral hearing under Local Rule 7.2(d), and DENIES
the Motion.
II. DISCUSSION
Defendant originally filed its Motion as seeking a Preliminary
Injunction under Federal Rule of Civil Procedure 65, but Defendant clarified that it
is seeking a stay of enforcement of the Stay Put Order, pending its appeal of that
Order to the Ninth Circuit. See Doc. No. 57. Because Rule 65 does not apply,
Plaintiff assumes that Federal Rule of Civil Procedure 62(c) is the proper Rule
even if Rule 62(c) does not squarely apply to a request to stay a “stay-put” order.2
See Marcus I. v. Dep’t of Educ., 2012 WL 3686188, at *2-4 (D. Haw. Aug. 24,
2012) (analyzing different provisions of Federal Rule of Civil Procedure 62 when

1

The record reflects that Defendant filed its Opening Brief on December 21, 2012.
Ninth Cir. Dkt. No. 9 (No. 12-17610).
2

Federal Rule of Civil Procedure 62(c) (entitled “Injunction Pending an Appeal”)
provides in pertinent part: “While an appeal is pending from an interlocutory order or final
judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore,
or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.”
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concluding that a stay of a stay-put order was not warranted). A stay-put order
under 20 U.S.C. § 1415(j) is often referred to as an “automatic injunction,” Joshua
A. v. Rocklin Unified Sch. Dist., 559 F.3d 1036, 1037 (9th Cir. 2009), even though
it enters without considering the four-factor analysis required under Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).3 Characterized as an
“automatic injunction,” Defendant’s Motion fits most closely within Rule 62(c).
(And regardless of which provision of Rule 62 applies, the court would apply the
same standards to determine whether to stay the Stay Put Order.)
Under Rule 62(c), a district court “retains jurisdiction during the
pendency of an appeal to act to preserve the status quo.” Natural Res. Def.
Council, Inc. v. Sw. Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). “Rule
62(c) does not restore jurisdiction to the district court to adjudicate anew the merits
of the case,” and the “district court’s exercise of jurisdiction should not materially
alter the status of the case on appeal.” Mayweathers v. Newland, 258 F.3d 930,
935 (9th Cir. 2001) (internal citations omitted).
A stay [pending appeal] is not a matter of right. . . . It is
instead “an exercise of judicial discretion” . . . [that] “is
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And to be clear, Defendant did not previously ask this court to apply the Winter factors
and the court remains of the view that, under the posture of this case, 20 U.S.C. § 1415(j)’s clear
directive applies -- Plaintiff must remain in his “current educational placement” pending his
substantive challenge. That is, Defendant is not appealing from an order granting a motion for
preliminary injunction brought under Rule 65.
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dependent upon the circumstances of the particular case.”
Judicial discretion in exercising a stay is to be guided by
the following legal principles, as distilled into a four
factor analysis[]: “(1) whether the stay applicant has
made a strong showing that he is likely to succeed on the
merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” “The
party requesting a stay bears the burden of showing that
the circumstances justify an exercise of [this Court’s]
discretion.”
Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556
U.S. 418, 433-34 (2009)). The court next applies these factors.
As explained in detail in the Stay Put Order, the posture of this case
fits squarely within 20 U.S.C. § 1415(j)’s clear directive. See Honig v. Doe, 484
U.S. 305, 323 (1988); Rocklin Unified Sch. Dist., 559 F.3d at 1040. “Plaintiff has
made a genuine, bona fide challenge to the D.O.E.’s ineligibility determination
(even if the Ninth Circuit ultimately determines that Act 163 and Hawaii’s
practices do not violate the IDEA).” A.D., 2012 WL 5292865, at *8. Defendant is
not likely to succeed on the merits.
As for Defendant’s new argument that the court should have applied a
preliminary injunction standard (not the “automatic injunction” standard set forth
in Rocklin), the court disagrees that Johnson v. Special Education Hearing Office,
287 F.3d 1176 (9th Cir. 2002), requires a preliminary injunction standard under the
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facts of this case. Johnson was seeking to modify a preexisting stay put placement,
not to institute stay put pending a legitimate challenge to a placement decision.
Moreover, Defendant should have made this argument in opposition to the Stay Put
Motion itself (which it did not do) -- not in this Motion to Stay the Stay Put Order.
Considering such new substantive arguments in detail at this stage would convert a
motion to stay into a motion for reconsideration.
The court also disagrees with Defendant’s argument that Plaintiff will
not be irreparably injured if the court stays enforcement of the Stay Put Order.
Indeed, the very purpose of stay put relief under § 1415(j) is to avoid “risk of
irreparable harm inherent in the premature removal of a disabled child to a
potentially inappropriate educational setting [and thus] the stay put provision acts
as a powerful protective measure to prevent disruption of the child’s education
throughout the dispute process.” Rocklin, 559 F.3d at 1040. “A stay of the stayput order would have the same effect as a ruling by this court that [Plaintiff] is not
entitled to stay-put.” Marcus I., 2012 WL 3686188, at *4.
On the other hand, Defendant should not be unduly injured by keeping
Plaintiff in the same educational placement at Loveland, where he had been
attending during the preceding fourteen years. And the public interest is best
served by Defendant complying with the mandates of the Individuals with
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Disabilities Education Act (and § 1415(j) in particular) as this court ordered in the
Stay Put Order.
“Of utmost concern to the court is the recognition that staying the
stay-put order would contravene the purpose of the stay-put statute.” Marcus I.,
2012 WL 3686188, at *5. Accordingly (regardless of which provision of Rule 62
applies), Defendant’s request to stay the October 25, 2012 Stay Put Order fails to
meet the four-part standard under Nken, 556 U.S. at 433-34.
III. CONCLUSION
Weighing the necessary factors, the court declines to stay enforcement
of the Stay Put Order pending Defendant’s appeal. Defendant’s Motion for Stay of
Enforcement of the October 25, 2012 Stay Put Order Pending Disposition of
Appeal to the Ninth Circuit, Doc. No. 53, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 7, 2013.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

A.D. v. Dep’t of Educ., Civ. No. 12-00307 JMS-KSC, Order Denying Motion for Stay of
Enforcement of Stay Put Order Pending Appeal

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