Jensen et al v. Minnesota Department of Human Services et al

Filing 794

ORDER denying 784 Defendants' Motion to Stay Pending Appeal. (Written Opinion) Signed by Judge Donovan W. Frank on 2/4/2020. (LJL)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
James and Lorie Jensen, as parents, guardians,
and next friends of Bradley J. Jensen; James
Brinker and Darren Allen, as parents,
guardians, and next friends of Thomas M.
Allbrink; Elizabeth Jacobs, as parent, guardian,
and next friend of Jason R. Jacobs; and others
similarly situated,

Civil No. 09-1775 (DWF/BRT)

Plaintiffs,
v.

ORDER

Minnesota Department of Human Services,
an agency of the State of Minnesota; Director,
Minnesota Extended Treatment Options, a
program of the Minnesota Department of
Human Services, an agency of the State of
Minnesota; Clinical Director, the Minnesota
Extended Treatment Options, a program of
the Minnesota Department of Human Services,
an agency of the State of Minnesota; Douglas
Bratvold, individually and as Director of the
Minnesota Extended Treatment Options, a
program of the Minnesota Department of Human
Services, an agency of the State of Minnesota;
Scott TenNapel, individually and as Clinical
Director of the Minnesota Extended Treatment
Options, a program of the Minnesota Department
of Human Services, an agency of the State of
Minnesota; and the State of Minnesota,
Defendants.

Shamus P. O’Meara, Esq., and Mark R. Azman, Esq., O’Meara Leer Wagner & Kohl,
PA, counsel for Plaintiffs.
Scott H. Ikeda, Aaron Winter, Anthony R. Noss, and Michael N. Leonard Assistant
Attorneys General, Minnesota Attorney General’s Office, counsel for State Defendants.
________________________________________________________________________

INTRODUCTION
This matter is before the Court on Defendants’ Motion to Stay Pending Appeal.
(Doc. No. 784.) Plaintiffs oppose Defendants’ motion.1 (Doc. No. 791.) For the reasons
set forth below, the Court denies Defendants’ motion.
BACKGROUND
The factual background for the above-entitled matter is clearly and precisely set
forth in the Court’s June 17, 2019 Order and is incorporated by reference here. (See
Doc. No. 737 (“June 2019 Order”).) The Court notes particular facts relevant to this
Order below.2
On December 18, 2019, the Court issued an order in response to the parties’
positions regarding the scope of their Stipulated Class Action Settlement Agreement
(Doc. No. 136-1 (“Settlement Agreement”)) with respect to prohibited restraints and
compliance with the Positive Supports Rule.3 (December 2019 Order.) The Court found
that because the Agreement’s definition of Facilities does not include the Forensic Mental

1

The Court observes that the parties make several arguments that are nearly
identical to those made in 2017 with respect to Defendants’ Motion to Stay Pending
Appeal (Doc. No. 655 (“2017 Motion”).) The Court denied the 2017 Motion. (Doc.
No. 674 (“2017 Denial”).) While a similar analysis applies, the Court re-addresses the
arguments in the context of its December 18, 2019 Order (Doc. No. 779 (“December
2019 Order”).)
2

The Court also supplements the facts as needed.

3

On March 12, 2014, the Court formally adopted and approved a Comprehensive
Plan of Action (“CPA”) consisting of 104 evaluation criteria and accompanying actions
designed to help direct and measure compliance. (Doc. Nos. 283, 284 (“CPA”).) The
combination of the Settlement Agreement and CPA is hereinafter referred to as the
“Agreement.”
2

Health Program (“FMHP”) (formerly the Minnesota Security Hospital), or Anoka Metro
Regional Treatment Center (“AMRTC”), those locations are not subject to the
Agreement’s strict prohibition on the use of restraint in all but extreme emergency
situations. (Id. at 11-12.) Notwithstanding, the Court found that a separate provision of
the Agreement requires Defendants to ensure that their use of restraint at FMHP and
AMRTC reflects current best practices. (Id. at 12-14.) Recognizing the very real danger
that inappropriate use of restraint poses to some of society’s most vulnerable citizens, the
Court ordered Defendants to conduct an external review of their use of restraint at FMHP
and AMRTC to properly determine whether such use reflects current best practices and
satisfies Defendants’ obligations under the Agreement. (Id. at 15-16.)
On January 10, 2020, Defendants filed a Notice of Appeal of the Court’s
December 2019 Order. (Doc. No. 783.) On the same day, Defendants filed a Motion to
Stay pending appeal. (Doc. No. 784.) Specifically, Defendants seek “an order staying
their obligations related to the Court’s Order Filed December 18, 2019 [] during the
pendency of the appeal they filed with the Eighth Circuit Court of Appeals.”4 (Id. at 1.)
Plaintiffs oppose Defendants’ motion. (Doc. No. 791 (“Pl. Opp.”).)

4

The December 2019 Order imposed three obligations on Defendants: (1) to jointly
agree with Plaintiffs on an external reviewer, or to nominate two individuals Defendants
would like to perform the external review if an agreement cannot be reached; (2) to
engage the external reviewer “to address the extent to which Defendants’ use of
mechanical restraint at [FMHP] and [AMRTC] reflects current best practices, specifically
quantifying the type, frequency, and duration of mechanical restraint at each location, and
identifying whether Positive Supports were attempted prior to use; and (3) that the
external reviewer’s initial report must be completed “prior to March 13, 2020, unless a
different date is adopted by the Court,” and a final report be submitted after a comment

3

DISCUSSION
I.

Legal Standard
Pursuant to Federal Rule of Civil Procedure 62(c), a “court may suspend, modify,

restore, or grant an injunction” pending the matter’s resolution on appeal. See Fed. R.
Civ. P. 62(c). “A stay is not a matter of right, even if irreparable injury might otherwise
result to the appellant. It is an exercise of judicial discretion. The propriety of its issue is
dependent upon the circumstances of the particular case.” Scripps-Howard Radio, Inc. v.
F.C.C., 316 U.S. 4, 10-11 (1942) (citations omitted); see also Nken v. Holder, 556 U.S.
418, 433 (2009). A court considers four factors in determining whether to grant a motion
to stay: “(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.” Hilton v. Braunskill, 481 U.S. 770,
776 (1987); see also Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011).
The moving party bears the heavy burden to establish that a stay should be granted in
light of these four factors, and “[t]he first two factors . . . are the most critical.” See
Nken, 556 U.S. at 433-34; see also 11 Charles Alan Wright, et al., Federal Practice and
Procedure § 2904 (3d ed. April 2017 Update) (“[B]ecause the burden of meeting the

period. (December 2019 Order at 16-17.) Defendants fulfilled their first obligation by
nominating two individuals to conduct the External Review after they were unable to
reach an agreement with Plaintiffs. Accordingly, the Court interprets Defendants’
Motion to Stay as applicable to the second and third obligations imposed by the
December 2019 Order.
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standard is a heavy one, more commonly stay requests will be found not to meet this
standard and will be denied.” (footnotes omitted)). “Ultimately, [the court] must consider
the relative strength of the four factors, balancing them all.” Brady, 640 F.3d at 789
(quotation marks and citation omitted).
Defendants argue that the four stay factors warrant the imposition of a stay with
respect to their obligations under the December 2019 Order. Plaintiffs, on the other hand,
argue that Defendants have not met their burden to justify a stay and ask the Court to
deny Defendants’ motion.5
A.

Likelihood of Success on the Merits

The Court first considers whether Defendants have “made a strong showing that
[they are] likely to succeed on the merits.” Hilton, 481 U.S. at 776. “It is not enough that
the chance of success on the merits be better than negligible. . . . [M]ore than a mere
possibility of relief is required.” Nken, 556 U.S. at 434 (quotation marks and citations
omitted). The Eighth Circuit has described this factor as “[t]he most important” for the
court’s consideration. Shrink Mo. Gov’t PAC v. Adams, 151 F.3d 763, 764 (8th Cir.
1998); see also Brady, 640 F.3d at 789.

5

Plaintiffs also argue in a footnote that Rule 62(c) does not apply because the
Court’s Order Approving Settlement is not an injunction. Rather, Plaintiffs contend, “the
applicable court action involved approval of a voluntary settlement agreement.” (Pl.
Opp. at 18-19 n.7.) However, Defendants seek to stay their obligations under the
Agreement as well as the Court’s subsequent orders. The Court’s orders adopting the
CPA and directing Defendants to follow specific reporting schedules, as well as its orders
requiring supplemental information, for example, are plainly injunctive in nature and
direct Defendants to undertake specific actions to facilitate the Agreement’s
implementation. (See Doc. Nos. 284, 544, 545, 707, 737.) Thus, the Court concludes
that Rule 62(c) properly applies to Defendants’ Motion to Stay Pending Appeal.
5

Defendants contend that they are likely to succeed on the merits because: (1) the
external reviewer function is limited to the Facilities as defined by the Agreement; (2) the
Agreement does not require restraint use at any particular location to reflect current best
practices; (3) use of restraint at AMRTC is immune from review because Defendants do
not license that location; (4) the December 2019 Order erroneously places the burden to
demonstrate compliance on Defendants; and (5) the December 2019 Order violates
Defendants’ due process rights. (Doc. No. 787 (“Def. Memo.”) at 12-19.)
Plaintiffs cite ongoing noncompliance issues that required the Court to appoint an
independent Court Monitor to conduct external reviews. (Pl. Memo. at 1-2, 20.)
Plaintiffs also contend that because an external review of mechanical restraint use at
FMHP and AMRTC was previously done in 2013, it is consistent with the Court’s
authority to order a subsequent evaluation of those locations. (Id.) Plaintiffs assert that
Defendants’ objection to the Court’s authority to conduct an external review is a tactic to
avoid correcting its conduct that compromises the safety and well-being of vulnerable
persons. (Id. at 2, 20.)
The Court finds that Defendants have failed to establish a strong likelihood of
success on the merits on appeal. To begin with, the external review is not a new concept,
nor has external review been limited to Facilities as defined in the Agreement. Nearly
eight years ago in July 2012, the Court observed there was “clearly a need for a process
to investigate potentially conflicting information, provide a coherent and complete
presentation, and make recommendations to the Court.” (Doc. No. 159 at 9-10.) The
Court subsequently appointed David Ferleger (“Ferleger”) to fill that role as a Court
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Monitor. (Id. at 10.) On April 25, 2013, the Court ordered that the role of the Court
Monitor subsume the External Reviewer function set forth in Section VII.B. of the
Settlement Agreement.6 (Doc. No. 212 at 6.) Defendants did not object to the Court
appointment of the Court Monitor as the External Reviewer and agreed to fund associated
costs. (Doc. No. 531 at 32.) On September 3, 2014, the Court increased the Court
Monitor’s responsibilities to: (1) oversee Defendants and ensure their accountability; and
(2) expedite prompt and meaningful compliance. (Doc. No. 340 at 8-9, 14.) Over the
years, the Court Monitor submitted a number of reports with findings of noncompliance
or items that could not be verified. (See, e.g., Doc. Nos. 236, 327, 347, 374, 388, 414,
604.) One report, entitled Restraint Chair and Seclusion Use at AMRTC and MSH:
Phase 1, cited multiple violations related to restraint and seclusion at AMRTC and
FMHP. (Doc. No. 236.)
In March 2016, the Court stayed the bulk of the Court Monitor’s duties in
response to Defendants’ commitment to new internal structures. (Doc. No. 551 at 3, 24.)
In June 2016, the parties discussed revising the External Function set forth in the
Agreement; however, they were unable to agree on how to amend it. (Doc. No. 578.)
Consequently, the Court ordered that the Court Monitor would continue to fill the
External Reviewer role. (Id. at 3.) Because the Court Monitor’s duties, including his role
as External Reviewer, were currently stayed, the Court reserved the right to order that the

6

The External Reviewer function, required pursuant to the Settlement Agreement,
was still not in place as of September 17, 2012. (Doc. No. 165 at 27.) The position
remained unfilled throughout 2012 and into 2013. As a result, external reviews
contemplated by the Settlement Agreement were not delivered.
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Court Monitor’s duties resume or to make further modifications to the Court Monitor’s
duties at any time consistent with the Court’s discretion. (Id. at 3-4.)
In September 2016, the Court lifted the stay on the Court Monitor’s duties and
directed him to conduct a review of Defendants’ recent reports to assess substantial
compliance with regard to all components of the Agreement. (Doc. No. 595 at 2-3.) The
Court Monitor found several areas of noncompliance and multiple others that were
inconclusive. (Doc. No. 604.) Defendants objected to the Court Monitor’s findings, and
to Ferleger’s continued monitoring. (Doc. No. 606-2 at 6-8.) In January 2017, the Court
held a Status Conference to discuss the Court Monitor’s findings and Defendants’
opposition to continued monitoring. (See Doc. Nos. 608, 611.) The Court once again
stayed the Court Monitor’s duties pending submission of Defendants’ next two
Compliance Reports, but reserved the right to re-engage the Court Monitor to investigate
or verify other issues that may arise. (Doc. No. 612 at 3.)
During an April 2019 Status Conference, Plaintiffs raised concerns over multiple
violations of abusive conduct and asked the Court to re-engage the Court Monitor.
(June 2019 Order at 20-21.) The Court found that an external review of several locations
was necessary to determine whether Defendants have complied with the obligations set
forth in the Agreement.7 (Id. at 24.) The Court observed that while it had the authority to

7

Initially, the external review was limited to Minnesota Life Bridge homes—
Stratton Lake, Donnelly, and Bromberg’s Lake. (June 2019 Order at 27.)
8

appoint Ferleger to conduct the review, it was mindful of Defendants’ objection to him.8
(Id. at 25.) The Court stated that it would “continue to stay the Court Monitor’s duties
for a limited time,” provided that Defendants engaged experts to provide independent and
objective assurance, advisory, and investigative services regarding the use of restraints.
(Id. at 26.) An initial report was required by August 1, 2019; however, the Court advised
that the need for further investigation may be necessary pending resolution of the dispute
on the scope of the Agreement with respect to prohibited restraints. (Id. 30-31.) The
Court specifically stated, “the dispute about scope on the use of prohibited restraints must
be resolved before the Court can confirm whether compliance must be further
investigated and reviewed by a Subject Matter Expert or the Court Monitor.” (Id. at 30.)
The Court also expressly reserved the right to expand the review pursuant to the briefing.
(Id. at 27 n.30.)
The parties were unable to agree on the scope, precipitating the December 2019
Order and the requirement that Defendants conduct an external review. (See Doc. Nos.
753, 759.) The Court could have lifted the stay on the Court Monitor to conduct the
review; the fact that it permitted the parties to select a mutually agreeable expert to
conduct the external review does not in any way negate its authority to require the
external review.

8

The Court did not concede that Defendants’ objection had any merit, but granted
Defendants the option to rely on their own internal processes for conducting external
reviews. (June 2019 Order at 24.)
9

Further, having previously determined that use of an external reviewer to evaluate
the use of mechanical restraint at FMHP and AMRTC is appropriate, the Court declines
to re-engage in this argument. (See Doc. Nos. 220, 236; see also Doc. No. 792 ¶¶ 5, 6,
Ex. D (demonstrating Defendants’ participation in previous evaluation of FMHP and
AMRTC).) Similarly, the December 2019 Order specifically held that the use of restraint
at FMHP and AMRTC must reflect best practices and reincorporates its analysis here.
(See December 2019 Order at 12-13.) The Court recognizes that Defendants disagree
with its finding, and that Defendants object to being required to show that they are not
abusing the use of mechanical restraint against human beings with developmental
disabilities, but their arguments do not alter the Court’s original analysis. The Court also
understands that Defendants object to the external review as a “financial and legal burden
of proving” to the Court “that they are not violating the Settlement,” and Defendants’
position that “the burden is on the [p]laintiff to prove [a] breach.” (Def. Memo. at 1718.) Notwithstanding, it is well-established that reporting is part of the Agreement; the
fact that the Court seeks additional reporting is neither novel, nor outside the scope of the
Agreement. (See, e.g., Doc. Nos. 136-1, Ex. A (order establishing initial reporting
requirement); 545 (order establishing reporting schedule); 707, 737 (orders requiring
additional information to determine whether the Court’s jurisdiction may equitably end).)
Finally, the Court finds Defendants’ due process argument without merit. As
discussed above, the Court clearly stated in its June 2019 Order that, “the dispute about
scope on the use of prohibited restraints must be resolved before the Court can confirm
whether compliance must be further investigated and reviewed by a Subject Matter
10

Expert or the Court Monitor.” (June 2019 Order at 30.) The Court also stated that
“[o]nce any disputes regarding scope are resolved, the need for further external
investigation and review will be determined,” and that following a determination on
scope, “the external review of prohibited restraints may be amended”.9 (June 2019 Order
at 31, 39.) Furthermore, the June Order was in part precipitated by Plaintiff’s April 2019
request for an evidentiary hearing and reappointment of the Court Monitor to address the
use of restraint and seclusion at AMRTC and FMHP. (Doc. No. 730 at 9-10, 15
(referencing the Rule 40 modernization and requirement that the use of mechanical
restraint at AMRTC and FMHP was subject to “best practices”).) Moreover, in
Defendants’ brief related to the scope of the Agreement with respect to the use of
prohibited restraints, Defendants specifically argued that their use of restraint and
seclusion at AMRTC and FMHP “represents best practices for similar facilities,” and
that “best practices” is the proper standard to assess whether its use is appropriate. (Doc.
No. 759 at 10, 19-20.) Accordingly, Defendants had ample “opportunity to be heard ‘at a
meaningful time and in a meaningful manner’” with respect to the issue at hand.
Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965).)
As the Court stated in its 2017 Denial, “[a]lthough the Eighth Circuit may
ultimately reach a different conclusion, the Court finds that Defendants have failed to

9

As stated above, the Court specifically reserved its right to expand the scope of the
review pursuant the briefing related to the scope of the Agreement. (June 2019 Order at
27 n.30.)
11

establish a strong likelihood of success on the merits.” (2017 Denial (citing In re
Wholesale Grocery Prods. Antitrust Litig., Civ. No. 09-MD-2090, 2016 WL 6246758, at
*2 (D. Minn. Oct. 25, 2016) (“As with any appeal, the Eighth Circuit may choose to
disagree with this Court’s conclusions . . . , but this possibility does not make it likely that
Defendants will succeed on the merits of their appeal.”)).)
B.

Irreparable Harm

The Court also considers whether Defendants will be irreparably harmed absent a
stay. Hilton, 481 U.S. at 776. As with each factor, the burden is on Defendants to
establish that this factor weighs in favor of granting the motion. “[S]imply showing some
‘possibility of irreparable injury’ fails to satisfy the second factor.” Nken, 556 U.S. at
434-35 (citation omitted). To establish this factor, the party seeking a stay “must show
that the harm is certain and great and of such imminence that there is a clear and present
need for equitable relief.” Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir. 1996).
Defendants assert that they would be irreparably harmed if the Court declines to
grant a stay. Defendants emphasize that the effective deprivation of appellate rights
constitutes significant irreparable harm. (Def. Memo. at 19-20.) According to
Defendants, they will be irreparably harmed by “expend[ing] a substantial amount of
taxpayer dollars” before the Eighth Circuit can review the December 2019 Order.10 (Id.

10

Defendants contend that “[t]he December 2019 Order plainly requires a reviewer
to spend a significant amount of time reviewing mechanical restraint use at FMHP and
AMRTC,” and that “the qualifications necessary to conduct such a review are extensive,
resulting in significant expense.” (Def. Memo. at 20.) To this end, Defendants suggest
that that the external review could cost upwards of $60,000. (Id.)
12

at 20.) Defendants also contend that the December 2019 Order “encroaches on the
management of state settings that serve some of the most vulnerable and challenging
populations in Minnesota, a core area of state sovereignty” which also constitutes
irreparable harm. (Id. at 21.)
Plaintiffs dispute that Defendants have established irreparable harm. Plaintiffs
suggest that Defendants have not lost their right to appeal as evidenced by their pending
appeal at the Eighth Circuit. (Pl. Opp. at 21.) Plaintiffs also argue that Defendants are
liable for the obligations in the Agreement under state law contract principles regardless
of the presiding court. (Id. at 21.) Finally, Plaintiffs argue that the doctrine of unclean
hands should apply to prevent a stay because “[Defendants’] own non-compliance has
unnecessarily caused this matter to drag on for years.” (Id. at 22.)
The Court finds that while Defendants have identified certain expenditures they
will incur absent a stay, they have failed to satisfy their burden to show that the harm they
will incur related to verifying that their use of mechanical restraint at FMHP and
AMRTC reflects best practices is sufficiently great and that there is a clear and present
need for equitable relief. Iowa Utils. Bd., 109 F.3d at 425.
The Court is also mindful of Defendants’ repeated delays in compliance
throughout this litigation’s lengthy history that led the Court to require additional
reporting and to extend its jurisdiction on multiple occasions. As this Court noted in its
2017 Denial “a court may decline to grant a motion to stay based on claims of
administrative and monetary harm where the principal irreparable injury which
defendants claim that they will suffer . . . is injury of their own making.” (2017 Denial
13

(citing Karsjens v. Jesson, Civ. No. 11-3659, 2015 WL 7432333, at *6 (D. Minn.
Nov. 23, 2015) (internal quotation marks and citation omitted)).) Here, if Defendants had
a history of properly verified reporting on issues that relate to their management of
settings that serve some of our most vulnerable and challenging populations in
Minnesota, external review may not be necessary.
The Court concludes that Defendants have failed to show that they would be
irreparably harmed if the Court declines to grant a stay. Moreover, a stay “is not a matter
of right, even if irreparable injury might otherwise result to the appellant.” Nken, 556
U.S. at 427 (citation omitted). Even if the Court were to find that Defendants faced some
degree of irreparable harm, the Court would decline to grant a stay in this case in light of
the Court’s view of Defendant’s likelihood of success on the merits and the totality of the
circumstances.
C.

Injury to Interested Parties

Next, the Court must consider whether issuance of the stay will substantially
injure interested parties, including Plaintiffs. See Hilton, 481 U.S at 776.
Defendants argue that Plaintiffs will not suffer harm if the Court imposes a stay.
Defendants assert that “the obligations imposed on Defendants do not directly accrue to
Plaintiffs’ benefit,” and argue that “the temporary cessation of the Court’s December 18
Order will likely have little impact on Plaintiffs whatsoever.” (Def. Memo. at 21.)
Defendants also contend that Plaintiffs would not suffer harm because “they could not
have anticipated the new external reviewer reporting requirements ordered by the Court
would ever exist.” (Id. at 21-22.)
14

Plaintiffs contend that “there exists a very real danger that if granted a stay,”
Defendants “will continue [their] delay and noncompliance,” may no longer honor
Agreement requirements, and could even “roll back agreed upon protections.” (Pl.
Memo. at 23.) Plaintiffs cite to a “significant backdrop of noncompliance and delay
caused by DHS” and urge the Court to avoid additional delay in the delivery of justice
pursuant to the parties’ Agreement. (Id. at 23-24.) Plaintiffs also assert that the risk of
injury applies to “other parties interested in the proceeding” and that “there can be no
doubt that the vulnerable citizens of Minnesota protected by [the Agreement] are
interested in these proceedings and are at grave risk of substantial injury should a stay
issue.” (Id. at 23 n.9.)
The Court finds that this factor also weighs against a stay. Every improper use of
restraint poses direct harm to our State’s most vulnerable citizens. While it may
ultimately prove correct that Defendants’ use of restraint at AMRTC and FMHP reflects
current best practices, the Court cannot verify this without an external review, and
declines to gamble on an issue with such immense possibility for harm. Moreover, it is in
Defendants’ best interest to conduct the review as quickly as possible. As the Court
recently stated, “[a]s soon as the Court receives sufficient evidence that Defendants are in
compliance with the Agreement, and that its jurisdiction may come to a just and equitable
end, the Court will end its jurisdiction.”11 (Doc. No. 756 at 10.)

The Court’s jurisdiction is scheduled to end on September 15, 2020; however, it
expressly reserved the authority and jurisdiction to order an additional extension of
jurisdiction. (June 2019 Order at 38.)
11

15

D.

Public Interest

Finally, the Court considers the public interest. Hilton, 481 U.S. at 776.
Defendants contend that the obligations imposed under the Court’s December
2019 Order “intrude on the State’s responsibility to set public policy and administer its
own law” and the December 2019 Order “interferes with the State’s responsibility of
caring for individuals with a disability when it monitors the minutiae of the Department’s
administration of matters beyond the case itself, which involved the use of restraint at a
single DHS-operated facility.” (Def. Memo. at 22-23.) Defendants also raise concerns
over the separation of powers. (Id. at 23.) Finally, Defendants note that the public
interest supports imposing a stay where it would prevent public expense and
reemphasizes the “substantial expenses” imposed by the December 2019 Order. (Id.)
Plaintiffs argue that, “[t]he public interest, in this case, lies in allowing this Court
to continue its work in correcting [Defendants’] noncompliance and implementing the
Agreement for the benefit of the vulnerable citizens of our state.” (Pl. Opp. at 25.)
Plaintiffs assert that Defendants’ argument with respect to federalism is baseless because
they “voluntarily entered into the Agreement, did not object to the Court’s approval of
the Agreement, the Court Monitor’s court-ordered investigation of restraint and seclusion
at [FMHP] and [AMRTC], willingly participat[ed] in that investigation, and accepted it,
and cannot reasonably suggest it did not recognize its obligations under the Agreement.”
(Pl. Memo. at 24.) Plaintiffs also characterize Defendants’ costs argument as “a stunning
display of self-interest and ignorance of the record” that contradicts Defendants’ own
stated commitment to protect individuals with disabilities. (Id. at 25-26.) Finally,
16

Plaintiffs ask the Court to preclude a stay through the application of judicial estoppel and
the doctrine of unclean hands. (Id. at 28-29.)
The Court finds that the public interest factor is evenly balanced. As the Court
stated in its 2017 Denial, “minimizing public expense is a relevant concern when
considering this factor.” (2017 Denial (citing James River Flood Control Ass’n v. Watt,
680 F.2d 543, 544-45 (8th Cir. 1982)).) Declining to stay this matter will require
Defendants to engage an expert, incurring public expense. Notwithstanding, the Court
continues to have an obligation to ensure that the Agreement, entered into with an aim to
improve the lives of individuals with disabilities throughout the state, is implemented
fully and without delay. Accordingly, the Court finds that this factor is on balance
neutral.
CONCLUSION
In sum, upon considering the relevant factors, the Court declines to stay this
matter pending the resolution of Defendants’ appeal. The Court finds that Defendants
have failed to persuade the Court that three of the four factors, including the two most
important—likelihood of success on the merits and irreparable harm—weigh in their
favor. The remaining factor is neutral. Thus, a stay pending appeal is not warranted.
ORDER
Based upon the presentations and submissions before the Court, and the Court
being otherwise duly advised in the premises,
IT IS HEREBY ORDERED that Defendants’ Motion to Stay Pending Appeal
(Doc. No. [784]) is DENIED.
17

Dated: February 4, 2020

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

18