Jones v. National Conference of Bar Examiners et al
Filing
57
OPINION AND ORDER denying 51 Motion for Further Modification of 48 Preliminary Injunction and Conditional Motion for a Stay. Signed by Chief Judge Christina Reiss on 9/7/2011. (pam)
U.S. DISiRICT COURT
DISTRICT OF VERi10NT
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UNITED STATES DISTRICT COURT
7 AM 9 55
FOR THE
2011 SEP :
DISTRICT OF VERMONT
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DEANNA 1. JONES,
Plaintiff,
v.
NATIONAL CONFERENCE OF
BAR EXAMINERS,
Defendant.
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DfPUT Y CLERK
Case No. 5:11-cv-174
OPINION AND ORDER DENYING DEFENDANT'S
MOTION FOR FURTHER MODIFICATION OF PRELIMINARY INJUNCTION
AND CONDITIONAL MOTION FOR A STAY
(Doc. 51)
This matter comes before the court on Defendant's Motion to Modify Preliminary
Injunction and Conditional Motion for a Stay (Doc. 51). The court previously granted,
with Plaintiffs consent, Defendant's motion to modify the preliminary injunction to
allow the use of software other than that designated in the preliminary injunction.
Pending before the court is Defendant's further request that it be allowed to
withhold the official report of Plaintiffs score earned on the MPRE exam on August 5,
2011 as she will not "need" this score until she has successfully completed all other
requirements for admission to the Vermont bar which Defendant anticipates will occur no
sooner than fall of2012. Defendant proposes that it advise Plaintiff informally of her
score so that she can schedule retesting if necessary. If the court determines that a
modification of the preliminary judgment in the manner suggested by Defendant is not
appropriate, Defendant asks that the court immediately stay that portion of the
preliminary injunction that requires Defendant to release the official report as part of its
provision of testing services to Plaintiffl while Defendant pursues an interlocutory
appeal. Defendant argues that either modification or a stay is warranted to deter other
examinees from asking for the same accommodations granted Plaintiff which it
characterizes as "giv[ing] the examinee whatever formats and accommodations they ask
for unless you can disprove the examinee's subjective statements about what is best for
them." (Doc. 51 at 2.) This, in tum, would place testing organizations in a
"fundamentally untenable position," id., because they would be forced by the pressures of
litigation to grant examinees whatever accommodations they requested.
Plaintiff opposes both Defendant's further motion to modify and to stay, arguing
that in essence Defendant seeks permission to treat Plaintiff differently from her non
disabled peers. In addition, Plaintiff argues that Defendant made all the same arguments
to the court which, in any event, did not adopt a "whatever the examinee wants" standard
in issuing the preliminary injunction.
As Plaintiff correctly points out, a court must examine a request for modification
with an eye to determining whether it "effectuates or thwarts the purpose behind the
injunction." See Sierra Club v.
us. Army Corps ofEngineers, 732 F.2d 253,257 (2d
Cir. 1984). Here, the requested modification would thwart the purpose of the injunction
which is to allow Plaintiff the opportunity to take the MPRE on an even playing field
with the non-disabled. This will not occur if Defendant is permitted to withhold
Plaintiffs score until some uncertain date in the future. Defendant's motion for further
modifications to the court's preliminary injunction is therefore DENIED.
With regard to Defendant's request for a conditional stay,
[t]o determine whether a stay of an order pending appeal is appropriate, a
court must evaluate the following 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 the other parties interested in
the proceeding; and (4) where the.public interest lies.
Defendant asks the court to make this requirement explicit in the preliminary injunction and
then stay it.
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Rodriguez v. DeBuono, 175 F.3d 227,234 (2d Cir. 1999).
Defendant, as the moving party, bears the burden of demonstrating that a stay is
warranted. As Plaintiff correctly points out, Defendant eschews any argument that it is
likely to succeed on the merits of the appeal or that a stay is in the interest of the public.
As to harm it will suffer in this case if a stay is not granted, Defendant does not claim that
recovery of the cost of the accommodations it provided to Plaintiff and nullification of
Plaintiffs MPRE score will be insufficient. Instead, it speculates that other examinees
will want similar accommodations because of the court's preliminary injunction-harms
that will allegedly exist whether or not the official MPRE score is released to Plaintiff.
Having failed to establish that a stay is warranted in this case, Defendant's conditional
motion must also be DENIED.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this
'7~ay of September, 2011.
Chri~
United States District Court
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