Valentin-Marrero et al v. Commonwealth of Puerto Rico et al

Filing 322

ORDER denying 291 Motion to Stay. The Court urges the parties to collaborate in good faith so that GAJVM can receive the education he needs and is entitled to as soon as possible. Signed by Judge Raul M. Arias-Marxuach on 1/21/2021. (mrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JOSE VALENTÍN MARRERO, EMERITA
MERCADO ROMAN, PERSONALLY, AS
MEMBERS OF THEIR CONJUGAL
PARTNERSHIP AND ON BEHALF OF
THEIR SON GAJVM

CIVIL NO. 18-1286(RAM)

Plaintiffs
v.
COMMONWEALTH OF PUERTO RICO;
DEPARTMENT OF EDUCATION OF THE
COMMONWEALTH OF P.R.
Defendants

OPINION AND ORDER
Before the Court is Plaintiffs José Valentín-Marrero and
Emerita Mercado-Roman’s, (collectively, “Plaintiffs” or “Parents”) 
Amended Motion to Stay Proceedings under Fed. R. Civ. P. 62 Pending
Appeal (“Motion to Stay”). (Docket No. 291). For the reasons
discussed below, the Court DENIES Plaintiffs’ Motion to Stay.
I.

BACKGROUND

Plaintiffs, on behalf of their son GAJVM, brought the present
lawsuit pursuant to the Individuals with Disabilities Education
Act (“IDEA” or “Act”), 20 U.S.C. §§ 100 et seq., against the
Commonwealth of Puerto Rico and the Department of Education of the

Civil No. 18-1286(RAM)

2

Commonwealth of Puerto Rico (collectively “Defendants” or “DOE”).
(Docket No. 1).
After considerable litigation and cross motions for summary
judgment, on October 9, 2020, the Court issued an Amended Opinion
and Order (Nunc Pro Tunc) granting in part and denying in part
Plaintiffs’ request for a permanent injunction and ordered the
following:


José Valentín-Marrero, Emerita MercadoRoman, the Department of Education of the
Commonwealth of Puerto Rico and the
Commonwealth of Puerto Rico are hereby
ORDERED to meet and approve a 2020-2021
Individualized Education Plan (“IEP”) for
GAJVM by October 30, 2020 that incorporates
Alternative
Behavior
Analysis
(“ABA”)
services and is devised with the assistance
of an ABA-certified professional. If the
Department does not have an ABA-Certified
professional on hand, then it shall
contract with one.



If the parties are unable to agree on an
IEP or an appropriate placement for GAJVM
for the 2020-2021 school year, the parties
are ORDERED to exhaust the administrative
remedies available under the IDEA. See 20
U.S.C.A. § 1415.

(Docket No. 279 at 56).
Plaintiffs subsequently filed a Notice of Appeal on October
19, 2020 and the pending Motion to Stay on October 29, 2020.
(Docket Nos. 281 and 291, respectively). In their Motion to Stay,
Plaintiffs posit that their “request for appeal could alter the
relief granted by the Court” and thus, the injunction should be

Civil No. 18-1286(RAM)

3

stayed. (Docket No. 291 at 1). On their part, Defendants filed a
Response in Opposition arguing that Plaintiffs have not met their
burden of proving that a stay is proper and affirming their
interest

in

starting

the

appropriate

administrative

process.

(Docket No. 295). Lastly, Plaintiffs filed a Reply. (Docket No.
300).
II.

LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 62(c), a “final judgment in an
action for an injunction” is not automatically stayed upon appeal.
Instead, the court must issue an order to that effect. Id. In Nken
v. Holder, the Supreme Court discussed at length the nature and
propriety of stays pending appeal. See Nken v. Holder, 556 U.S.
418 (2009). First, “[a] stay is not a matter of right, even if
irreparable injury might otherwise result.” Id. at 433 (quoting
Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)).
Rather, it is “an exercise of judicial discretion […] dependent
upon the unique circumstances of the particular case” and “guided
by sound legal principals.” Id. at 433-34 (citations and quotations
omitted).
Specifically, the Nken Court held that:
[T]hose legal principles, have been distilled
into consideration of four factors: (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

Civil No. 18-1286(RAM)

4

the
other
parties
interested
in
the
proceeding; and (4) where the public interest
lies.
Id. at 334 (quoting Hilton v. Braunskill, 481 U.S. 770, 776,
(1987)). Notably, the first two factors “are the most critical”
and are not easily met. Id. “It is not enough that the chance of
success on the merits be better than negligible. ... By the same
token, simply showing some possibility of irreparable injury fails
to satisfy the second factor.” Common Cause Rhode Island v. Gorbea,
970 F.3d 11, 14 (1st Cir. 2020) (quoting Nken, 556 U.S. at 43435).
III. ANALYSIS
A. Likelihood of success on the merits
To establish likelihood of success, Plaintiffs reiterate
their interpretation of previous Court orders that ABA services
must be provided “100% of the time.” (Docket No. 291 at 3-9). The
Court has discussed this exact argument at length and rejected it
in previous opinions. (Docket Nos. 278 and 279). At this juncture,
Plaintiffs have not provided any legal authorities to persuade the
Court to rule any differently. See L. CV. R. 7(a). Plaintiffs also
contend that they believed that the Court’s order granting in part
a preliminary injunction (Docket No. 62) was final. (Docket No.
291 at 10-13). Thus, they were allegedly unaware that they needed
to provide evidence as to the appropriateness for the academic
services and/or placement for GAJVM that they were requesting. Id.

Civil No. 18-1286(RAM)

5

This

argument

is

undermined

by

the

nature

of

a

preliminary

injunction. “The purpose of a preliminary injunction is merely to
preserve the relative positions of the parties until a trial on
the merits can be held.” Univ. of Texas v. Camenisch, 451 U.S.
390, 395 (1981). Further, parties are “not required to prove
[their] case in full at a preliminary-injunction hearing, and the
findings of fact and conclusions of law made by a court granting
a preliminary injunction are not binding at trial on the merits.”
Id. (internal citations omitted) (emphasis added). Therefore,
Plaintiffs have not shown a likelihood of success on the merits.
B. Irreparable injury absent a stay
Plaintiffs maintain that without a stay, “it is likely[] the
DOE will continue to refuse to provide” the services requested for
GAJVM and that merely receiving “a limited amount of services will
likely result in further aggravation of GAJVM[‘s] conditions[.]”
(Docket No. 291 at 13).
An injunction requiring that all relevant parties engage in
the collaborative IEP process as required by the IDEA simply cannot
be construed as a source of irreparable harm for GAJVM. See
Nickerson-Reti v. Lexington Pub. Sch., 893 F. Supp. 2d 276, 285
(D. Mass. 2012), aff'd (June 19, 2013) (explaining that States are
tasked with “the obligatory creation of an IEP for each student,
reviewed annually and revised when necessary.”)(citing Bd. of
Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v.

Civil No. 18-1286(RAM)

6

Rowley, 458 U.S. 176, 181-82 (1982)). Plaintiffs’ contention that
the discussions with the DOE will “likely” be futile is patently
speculative. Further, as of November 2018, Plaintiffs decided to
enroll GAJVM at Starbright Academy for two hours of daily services
with an ABA therapeutic focus, in lieu of receiving a formal
education. (Docket No. 279 ¶ 109). In other words, Plaintiffs’ own
abandonment of the IEP process has led to the harm they are
currently alleging. Thus, they have not evinced the existence of
irreparable injury in the absence of a stay.
C. The effect of the stay on other interested parties
Plaintiffs affirm, and Defendants concede, that issuing the
requested stay would not injure Defendants. (Docket Nos. 291 at
14; 295 at 7). However, the stay would be detrimental to GAJVM,
who has yet to receive the education he needs and that is required
by law. Therefore, this factor also favors denying the stay.
D. Public interest
The public interest lies in developing an IEP for GAJVM so
that he can receive a free appropriate public education (“FAPE”)
as required by the IDEA. See 20 U.S.C.A. §§ 1401(9), 1414; Lessard
v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18 (1st Cir.
2008). Plaintiffs recognize this in their Motion to Stay. (Docket
No. 291 at 14). Notably, the United States Department of Education
(“USDOE”) has issued guidelines maintaining that even during the
present

Covid-19

Pandemic,

and

regardless

of

“what

primary

Civil No. 18-1286(RAM)

7

instructional delivery approach is chosen[,]” state and local
educational
ensuring

agencies

that

disabilities.”

a

and

[FAPE]
United

IEP
is

Teams
provided

States

“remain
to

all

Department

responsible
children
of

for
with

Education,

Implementation of IDEA Part B Provision of Services in the COVID19 Environment, Office of Special Education Programs,
2020),

(Sept. 28,

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/

qa-provision-of-services-idea-part-b-09-28-2020.pdf.

In

other

words, even “[i]f State and local decisions require schools to
limit or not provide in-person instruction due to health and safety
concerns, […] IEP Teams are not relieved of their obligation to
provide FAPE to each child with a disability under IDEA.” Id. In
this Guideline, the USDOE also urged that:
IEP Teams can discuss how a child’s IEP will
be implemented with traditional in-person
instruction and how services also could be
provided through remote/distance instruction
if circumstances require a change to distance
learning or a hybrid model. In making these
determinations, IEP Teams should consider
alternate available instructional methodologies or delivery, such as online instruction, teleconference, direct instruction via
telephone or videoconferencing, or consultative services to the parent (if feasible).”
Id.
The stay pending appeal requested by Plaintiffs would only
delay the process of developing an IEP and providing GAJVM with
the FAPE required by the IDEA. Therefore, the public interest
factor also favors denial of the stay.

Civil No. 18-1286(RAM)

8

IV.
Given

that

all

four

CONCLUSION

relevant

factors

favor

denying

the

requested stay pending appeal, the Court hereby DENIES Plaintiffs’
Motion to Stay at Docket No. 291.
The Court urges the parties to collaborate in good faith so
that GAJVM can receive the education he needs and is entitled to
as soon as possible.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of January 2021.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge