1 – MOTION FOR TEMPORARY RESTRAINING ORDER

Richard G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

THE HUNGERFORD LAW FIRM

PO Box 3010

Oregon City, Oregon 97045

Telephone: (503) 781-3458

Facsimile: (503) 655-1429

Attorneys for Plaintiff–Appellant

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MEDFORD DIVISION

GRANTS PASS SCHOOL DISTRICT,

Plaintiff-Appellant,

v.

STUDENT,

Defendant-Appellee.

Civil No. 1:14-cv-01115-CL

MOTION FOR TEMPORARY

RESTRAINING ORDER (“TPO”)

Individuals with Disabilities Education Act 

(“IDEA”)

Request for Oral Argument

This is a Motion for Stay of Remedies in regard to the administrative final order issued in 

ODE DP 14-104. A substantive appeal of that order has been filed simultaneously with this 

Motion.

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I.INTRODUCTION

This is a Motion for Temporary Restraining Order in regards to the remedies arising out 

of the Final Order issued by Administrative Law Judge (“ALJ”) Bernadette House in Oregon 

Department of Education (“ODE”) Due Process 14-104 (“the Final Order”) until a substantive 

appeal of such Order is completed. A substantive appeal of the Final Order has been filed with 

this Court pursuant to 20 U.S.C. § 1415(i)(2).

The Remedies set forth in the Final Order are as follows: “[The] District is hereby 

ORDERED to provide ESY [i.e., extended school year services] of 360 minutes per day, at a 

schedule mutually agreeable to the parties, sufficient to maintain student’s skills and behavior 

with regard to Student’s Annual Goals and Short Term Objectives as set forth in the May 23, 

2013 IEP.” DP 14-104 Final Order at 28 (bracketed language added).

II. ARGUMENT

A court may stay an administrative order if the movant demonstrates that the 

circumstances justify a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 433–34, 129 

S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citing Clinton v. Jones, 520 U.S. 681, 708, 117 S.Ct. 1636, 

137 L.Ed.2d 945 (1997)).

When there is a dispute as to whether a ALJ’s Final Order must be implemented pending 

an appeal in federal court, such dispute typically is resolved in the civil action in which the 

appeal has been brought. See, e.g., District of Columbia v. Oliver, 2013 WL 6000889, at *2 

(D.D.C.2013); Friendship Edison Pub. Charter Sch. Chamberlain Campus v. Suggs, 562 

F.Supp.2d 141, 143 (D.D.C.2008). As stated above, an appeal of the Final Order has been filed 

with this court. 

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Courts considering motions to stay or otherwise enjoin parties from taking certain actions 

in federal court arising from the IDEA have treated motions to stay the same as motions for

temporary restraining orders (“TROs”) or preliminary injunctions. Aliah K. ex rel. Loretta M. v. 

Hawaii, Dept. of Educ., 78 F Supp 2d 1176, 1186 (D Haw 2011). 

The standard applied to either a TRO or a request for a preliminary injunction are the 

same and are as follows: (1) a showing of a likelihood of success on the merits, (2) the 

likelihood that if the injunction is not granted the requesting party will suffer irreparable harm, 

(3) that the balance of equities is in the moving party’s favor, and (4) that an injunction is in the 

public interest. Id. (citing Am. Trucking Ass’ns v. City of Los Angeles, 559 F3d 1046, 1052 (9th

Cir 2009).

In the preliminary injunction context, these factors traditionally have been evaluated on a 

“sliding scale,” such that if a movant makes a particularly strong showing on one factor, then he 

or she need not necessarily make a strong showing on another factor. See Davis v. Pension Ben. 

Guar. Corp., 571 F.3d 1288, 1291–92 (D.C.Cir.2009); Thapa v. Gonzales, 460 F.3d 323, 334 (2d 

Cir.2006) (citing Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 

153 (6th Cir.1991)).

For the reasons listed below, the District believes that the four factors taken as a whole 

show that granting a Motion for TRO until the underlying appeal is finished is appropriate.

A. The ALJ’s Disregard Of Legal Authorities Without Any Support of Case Law and 

Selective Citation Of The Record Weighs In Favor Of The District Being Successful 

In Its Substantive Appeal.

Grants Pass School District’s (“the District’s”) substantive appeal is likely to be 

successful on the merits for numerous reasons, including the fact that the ALJ ignored on point 

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legal authorities and legal arguments as well as being overly selective in her citations of the 

testimony and record.

In the recent case of Forest Grove School Dist. v. Student, 2014 WL 2592654 (D. Or. 

2014) Oregon District Court judge, John Acosta, clarified the standard for ALJ decision’s when 

he found that, in cases such as this one, where an ALJ fails to cite legal authority or address key 

testimony and evidence, her Findings of Fact and Conclusions of Law in an IDEA Due Process 

were due little deference. In reversing the ALJ, Judge Acosta stated,

“In her analysis of the issues, the ALJ fails to adequately support her conclusions 

with caselaw [sic]. Instead, she applies an arbitrarily high standard which bears 

little resemblance to the legal standards established by decades of court 

interpretation of the IDEA [...] Because the ALJ’s opinion is factually selective to 

the detriment of an accurate factual record and inadequately develops the 

applicable legal standards, the court affords the ALJ’s opinion little deference.” 

Id. at 11 (bracketed language added).

Here, like in Forest Grove, the ALJ held the District to arbitrarily high standards without 

providing any legal authority whatsoever establishing that the District must meet such standards. 

For example, one of the Parent’s expert witnesses spent significant time testifying about 

what he considered best practices in data collection, such as collecting regression/recoupment 

data on consecutive days and using three data points, rather than two data points as the District 

did. Tr. Vol. 41, 31:1-11 and 34-39. The ALJ then held the District to this standard in her 

Conclusions of Law. However, the ALJ did not cite any legal authority establishing that the 

District was legally required to meet the standards set forth by the Parent’s witnesses, or that the 

 1 In DP 14-104 Final Order the ALJ referred to the transcript differently than the transcripts were 

labeled by the court-reporting firm. The court-reporting firm labeled each transcript by day, 

whereas the ALJ referred to them as Vol. 1-4. For ease of reference, this Motion uses the same 

system as the ALJ. As such, Tr. Vol. 1 correlates to DP 14-102 hearing day May 13, 204; Tr. 

Vol. 2 refers to hearing day May 14, 2014; Tr. Vol. 3 refers to testimony from DP 14-104, June 

16, 2014; and Tr. Vol. 4 refers to testimony from June 17, 2014.

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standards proposed by the Parent’s witnesses aligned with state or federal law. DP 14-104 Final 

Order at 26.

Similarly, the ALJ made no reference to testimony by the Parent’s expert witnesses that 

the standards they were discussing were what they thought was “best” or “preferable”. See Tr. 

Vol. 4, 38:23-39:7 (Gentry testifying that 10 or more trials is “preferable”); Tr. Vol. 4, 49:25-

50:11 (Gentry testifying that more data points create “a better average.”); Tr. Vol. 4, 31:6-11 

(Gentry testifying that “the more data points you can use to create an average the better * * *”); 

Tr. Vol. 4, 58:21-22 (Gentry testifying to what he thinks would provide “a better baseline”). 

However, the ALJ at no point distinguished this testimony from what is legally required under 

IDEA.

Not only did the Parent’s experts only testify about best practices, rather than legal 

requirements, but these witnesses testified with a minimal knowledge of the District’s data 

collection and analysis methodology. Neither of the Parent’s expert witnesses ever interviewed, 

communicated with, or requested additional documents from the District in order to assist in the 

formation of their opinions – the hearing was the first time the District had heard from either of 

the Parent’s witnesses. Tr. Vol. 4, 64:16-19; Tr. Vol. 4, 74:7-75:1; Tr. Vol. 4, 113:11-20; Tr. 

Vol. 4, 114:12-16; Tr. Vol. 4, 120:11-123:3. Again, this testimony was never mentioned by the 

ALJ, despite her heavy reliance on them for analyzing the fidelity of the District’s data 

collection.

Meanwhile, the ALJ concluded that the District’s expert witnesses were not entitled to 

deference, but she did not provide any reasoning why. For instance, the ALJ concluded that Ms. 

Jewell was “not entitled to deference in the manner of data analysis utilized in measuring 

Student’s progress on the STOs tracked for determining ESY eligibility, or in the analysis of the 

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data that was collected.” DP 14-104 Final Order at 25-26. The ALJ did not provide any 

reasoning why Ms. Jewell was not entitled to such deference even though she was the person 

who was in charge of collecting and analyzing such data, the person who oversaw and managed 

the collection of data by others, and had an extensive history of collecting and analyzing such 

data in this District as well as previously in other districts. Tr. Vol. 3, 150-151.

More importantly, the ALJ failed to address, let alone distinguish, extensive case law 

establishing that (1) questions of educational methodology should be left to the discretion of 

educational professionals, and (2) ESY data collection is a matter of educational methodology. 

Courts, including those in the Ninth Circuit, have routinely held that decisions 

surrounding educational methodologies are left to the educational professionals serving a student 

and, as such, it is not for the courts to second-guess the educational policies and methods used by 

a district to address the complex question of when a student requires ESY services. See Rowley, 

458 U.S. at 207 (footnote omitted) (“In assuring that the requirements of the Act have been met, 

courts must be careful to avoid imposing their view of preferable educational methods upon the 

States. The primary responsibility for formulating the education to be accorded a handicapped 

child, and for choosing the educational method most suitable to the child's needs, was left by the 

Act to state and local educational agencies in cooperation with the parents or guardian of the 

child.” See also, Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990) (quoting 

Rowley, 458 U.S. at 206) (““The ‘preponderance of the evidence’ language in the [IDEA] ‘is by 

no means an invitation to the courts to substitute their own notions of sound educational policy 

for those of the school authorities which they review.’”).

In particular, federal case law from within the Ninth Circuit has held that questions of 

ESY eligibility criteria and methodology are “classic examples of technical questions of 

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educational policy.” Virginia S. ex rel. Rachael M. v. Department of Educ., Hawaii, 2007 WL 

80814, * 12 (D Haw Jan 8, 2007) (noting that reviewing courts lack the expertise necessary to 

resolve persistent and difficult questions of educational policy and that they should likewise not 

“second-guess” conclusions regarding ESY determinations absent contrary evidence) (citations 

omitted).

The court must give "due weight" and "accord deference" to the policy decisions of the 

District, as "courts should not substitute their own notions of sound educational policy for those 

of the school authorities which they review." Union Sch. Dist. v. Smith, 15 F.3d 1519, 1524 (9th 

Cir.), cert. den, 513 U.S. 965, 115 S. Ct. 428, 130 L.Ed.2d 341 (1994) [citations omitted]; Ojai 

Unified Sch. Dist. et al v. Jackson, 4 F.3d 1467, 1471-72 (9th Cir. 1993), cert. denied, 513 U.S. 

825, 115 S. Ct. 90, 130 L.Ed.2d 41 (1994); Pachl v. School Board of Independent School District 

No. 11, 42 IDELR 264, at 18 (D Minn Feb 23, 2005), aff’d 46 IDELR 1 (8th Cir July 14, 2006) 

(rejecting distinction by parents between ESY and other areas of IEP and placement 

development where school district personnel are afforded deference based on their educational 

expertise).

Similarly, The U.S. Department of Education has specifically stated, "there is nothing in 

the [IDEA] that requires an IEP to include specific instructional methodologies." 71 Fed. Reg. 

46,665 (2006) (bracketed language added). See also 34 CFR § 300.320(d)(1); Shakopee Indep. 

Sch. Dist., 52 IDELR 210 (SEA MN 2009) (finding that neither the IDEIA nor its implementing 

regulations require an IEP to include a specific methodology or one that would maximize the 

student's abilities); See also Board of Educ. of Hendrick Hudson Central School Dist., 

Westchester County v. Rowley, 458 US 176, 178, 102 S Ct 3034, 73 L Ed 2d 690 (1982) (holding 

that once it has been determined that the general requirements of IDEA have been met, 

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“questions of methodology are for resolution by the States.”); Carlson v. San Diego Unified 

School Dist., 380 Fed Appx 595, 597 (9th Cir 2010) (unpublished opinion) (holding same).

Within Oregon, the district court in Forest Grove School District v. Student, 2014 WL 

2592654, *25 (D Or June 9, 2014) reiterated that “’parents, no matter how well-motivated, do 

not have the right under the [IDEA] to compel a school district to provide a specific program or 

employ a specific methodology in providing for the education of their handicapped child.’” 

(citing Lachman v. Illinois St. Bd. of Educ., 852 F.2d 290, 297 (7th Cir 1988). The district court 

emphasized “it is not the prerogative of outside actors to usurp the authority of school districts by 

substituting their own ideas about sounds educational policy for that of the schools.” Id.

The District briefed these and multiple other cases in its Posthearing Brief, but the ALJ 

did not address any of them in her Final Order. She cited no contrary case law or legal authority, 

she did not distinguish the cases cited, nor did she provide any reasoning as to why it was 

appropriate for the court to determine the methodology that the District must use. Instead, she 

went about engaging in the precise type of second-guessing of methodology (e.g., stating the 

District needed collect three data points instead of two) that numerous courts have held to be 

inappropriate.

Similarly, the Parent did not cite any legal authority establishing that he could determine 

the methodology the District used in collecting and analyzing ESY data. In fact, not only did the 

Parent not provide any legal authority in his posthearing brief establishing that it is appropriate 

for him to determine which methodology the District has to use, he actually conceded that it was 

inappropriate for him do so. Specifically, the Parent wrote, “I am keenly aware that I as a parent 

have no say in teaching methodology or even how data is collected, but when I have access to

the raw data collected, I can hold the district culpable for the results of its efforts with said data.” 

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Petitioner Posthearing Brief at 6. Again, the Parent provides no legal authority for this 

proposition. Additionally, the testimony on the record is clear that the “raw data” that the Parent 

refers to is inappropriate for making ESY determinations. Tr. Vol. 3, 106:6-107:9 (testimony that 

raw or preliminary data was subject to review, interpretation, and scrutiny by educational 

professionals serving Student, and that it was not intended as a final determination of ESY); Tr. 

Vol. 3, 149:13-156:1.

Not only did the ALJ ignore extensive case law and legal arguments, she also ignored

testimony and evidence contrary to her conclusions. For instance, the ALJ disregarded all of the 

ESY data collected over spring break as “irrelevant”. DP 14-104 Final Order Footnote 6 at 18. 

That data was uncontested by the Parent and his expert witnesses, and demonstrated that the 

Student did not suffer from regression. Even though the ALJ held in an earlier hearing (i.e., DP 

14-102) that the District was reasonable in waiting to make an ESY until after spring break so it 

collect more ESY data to supplement the data gathered over winter break, she now dismisses all 

of that data. Id. Essentially, the ALJ penalized the District for what she perceived as flaws in the 

District’s winter break data, but when the District shared the same concerns and took action to 

supplement the winter break data with data collected over spring break, she dismissed any 

additional data as irrelevant.

Similarly, even though the ALJ relies heavily on the testimony of the Parent’s witnesses, 

she fails to make any reference to key testimony from those same witnesses contradicting her 

findings. For example, the ALJ extensively cites testimony from Dr. Gentry about the fidelity of 

the District’s data collection process, but she makes no reference to his testimony that he could 

not make any judgment concerning the fidelity of the District’s data collection process. In fact, 

Dr. Gentry testified,

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“In a case like this where I have only the raw data in front of me, it is almost 

impossible to judge fidelity just because, as a consultant, I would be training and 

sitting in with the data collector to make sure they’re collecting data correctly 

when they collect it [...] So without those things, I can’t say whether or not this 

data meets the standards of fidelity or not.” Tr. Vol. 3, 24:14-25:8.

Lastly, even if it were found that the District denied Student FAPE, the Remedies ordered 

by the ALJ would still be inappropriate. The ALJ ordered ESY to be provided “with regard to 

Student’s Annual Goals and Short Term Objectives as set forth in the May 23, 2013 IEP.” DP 

14-104 at 28. The May 2013 IEP was written over a year ago by a school district in Hawaii, and 

since then the District in Oregon has met with the Parent on multiple occasions to write and 

rework a new IEP. As noted by the ALJ in the CP I Final Order2, and as required by the District 

policies and procedures (which the ALJ concluded was in line with state and federal law), “ESY 

is intended to maintain a skill or behavior directly related to one or more IEP goals.” DP 14-102 

Final Order at 5. However, the ALJ is now requiring the District to provide ESY that are not 

connected to any of Student’s current IEP goals. Courts have held that an award of ESY based 

on a prior IEP is not entitled to deference where there was little to no evidence at hearing 

regarding the appropriateness of this remedy or how it would address any failures by District to 

provide FAPE. Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C.Cir.2005) 

(“[T]he district court, obligated by IDEA to ensure that relief set forth in the administrative 

award was ‘appropriate,’ could not simply rely on the hearing officer's exercise of discretion.”).

It should be noted that when the Parent and District implemented a new IEP for Student 

in November 2013 they decided that the old goals and objectives were no longer appropriate for 

Student and that there needed to be a substantial shift in the educational curriculum and 

methodologies that would be used with Student. Tr. Vol. 2, 30:19-21 (testimony that the 

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“objectives [on the new IEP] differed greatly” from the Hawaii IEP); Tr. Vol. 2, 40:8-23 

(testimony that there were changes in the instructional approach and methodology in the new 

IEP). Moreover, the testimony at hearing was that Parent was involved in determining these new

goals and objectives. Tr. Vol. 2, 23:17-21. Nevertheless, the ALJ is requiring the District to 

work on goals and objectives that everyone, including the Parent, agreed are no longer 

appropriate for the Student. Requiring the District to work with Student on goals and objectives 

that the Parent and District have been moving Student away from for over half-a-year is not just 

illogical, it also could be detrimental to Student.

Similarly, the ALJ is requiring the District to provide ESY to in all educational areas 

even though the testimony at hearing and in the record is that the Parent agreed that it was not 

appropriate to provide Student ESY in the area of writing. Tr. Vol. 3, 38:17-39:2; Ex. D11 at 5. 

In summary, the ALJ is requiring the District to provide ESY in areas that everyone, including 

the Parent, agrees are not appropriate and for goals and objectives that everyone, including the 

Parent, agrees are no longer appropriate. 

Lastly, the Parent presented no evidence or testimony at hearing regarding what an 

appropriate remedy would be. Even when a parent proves that a school fails to offer FAPE, the 

parent must still present evidence regarding the appropriate scope of services or remedy he is 

seeking. Parenteau v. Prescott Unified School Dist., 2008 WL 5214997, *10 (D Ariz Dec 11, 

2008) (noting that even if parent had proven that prior school district had failed to offer a FAPE, 

fact that parent failed to put on any evidence regarding the appropriate scope of services or any 

specifics about the specific remedy he was seeking resulted in parent not being entitled to any 

remedy). Instead, the Parent merely stated in his posthearing brief that, “The details of requested 

 2 CP I was included in the record of CP II at the agreement of both parties.

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ESY compensatory education are outlined and enumerated in the Hawaii IEP which was in effect 

prior to the current IEP.” The Parent presented no testimony or evidence as to why this remedy 

would be appropriate and the District never had the opportunity to cross-examine the Parent on 

the issue of why he believes that this remedy is appropriate.

B. Implementing The Remedies Set Forth By The ALJ Which Require The Student To 

Work On Goals And Objectives Everyone, Including The Parent, Have Agreed Are 

No Longer Appropriate For Student Would Be Irreparably Harmful To Both The 

District And The Student.

If this Motion were to be denied and the District then was successful in it substantive 

appeal, then the District would be irreparably harmed because the District would be unable to 

recover any costs it expended in the meantime (e.g., any costs it occurred in providing ESY to 

Student). As the D.C. Circuit has noted, “[i]t would be absurd to imagine a trial court ordering 

parents to reimburse a school system for the costs of a hearing examiner's erroneous placement 

of their child [.]” Jenkins v. Squillacote, 935 F.2d 303, 307 n. 3 (D.C.Cir.1991); see also District 

of Columbia v. Vinyard, 901 F.Supp.2d 77, 90–91 (D.D.C.2012). Courts have recognized such 

non-recoverable economic costs as irreparable harm. See District of Columbia v. Vinyard, 901 

F.Supp.2d at 90; Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt, 704 

F.Supp.2d 50, 53 (D.D.C.2010). Here, the costs of providing ESY are significant. In fact, for 

the same amount of money as it would take to provide ESY to Student for one summer the 

District could hire two full-time special education assistants (i.e., educational assistants) for the 

regular, nine-month academic year.

Second, a stay is appropriate to preserve a school district's right to appeal what it 

considers to be an erroneous decision. Here, the District's claim on appeal may become moot if a 

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stay is not granted and it is compelled to provide the summer services while pursing an appeal 

that may take several months to resolve. Preserving the right of appeal is a meaningful 

consideration. See District of Columbia v. Vinyard, 901 F.Supp.2d at 90 (“The Court finds 

compelling the District's arguments that a stay of these holdings is necessary to preserve the 

District's meaningful right to appeal the HOD.”).

Moreover, case law in the Ninth Circuit is clear that any delay in providing ESY now can 

be remedied through compensatory education such that Student would not suffer irreparable 

harm. See, e.g., Park ex rel. Park v. Anaheim Union High School Dist., 464 F3d 1025, 1034 (9th

Cir 2006) (recognizing that administrative law judge could order compensatory education in the 

form of extended school year services); Tyler W. ex rel. Daniel W. v. Upper Perkiomen School 

Dist., 963 F Supp 2d 427, 439 (ED Pa 2013) (recognizing and affirming ALJ award of 

compensatory services to address school district’s failure to provide appropriate services, 

including denial of ESY services); I.H. ex rel. D.S. v. Cumberland Valley School Dist., 2012 WL 

2979038, *7 (July 20, 2012) (noting ALJ’s award of compensatory education during the summer 

of 2010 to address school district’s failure to consider and award ESY services during the prior 

summer of 2009).

As stated above in the previous section, implementing the Remedy set forth by the ALJ 

could result in an irreparable harm to Student. The ALJ is requiring the District to work on goals 

and objectives that everyone, including the Parent, agreed are no longer appropriate for the 

Student, and that the District has been trying to move Student away from for over half-a-year. 

Additionally, the testimony on the record is clear that Student struggles greatly with change. Tr. 

Vol. 1, 188:22-189:4 (“[Student] struggles greatly with change in routines, change in staff, 

change in even the presentation of materials set in front of [Student]. If he's used to a certain 

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way of that being done, he's really going to struggle with understanding or processing what the 

expectations are for [Student].”). Having Student work on one set of goals and objectives for the 

regular school year and then requiring him to work on entirely different goals and objectives 

winter and summer breaks would be confusing, taxing, and generally detrimental to Student.

C. The District Has Consistently Acted In Good Faith To Gather And Analyze All 

Relevant Data In Making The Appropriate ESY Determination But Has Received 

Minimal Cooperation From The Parent.

The District has acted in good faith throughout these proceedings, seeking appropriate 

information from the Parent, and prior districts. In contrast, the Parent has failed to provide 

timely and complete information. For instance, the Parent argued at hearing that the District 

should provide ESY to Student in part because Student has received ESY in the past. However, 

the Parent has refused to provide information and data about past ESY.

The record is full of testimony that the District has made numerous requests for complete 

copies of Student’s educational records (which include information about Student’s previous 

ESY) from the Hawaii school district, Department of Education and even the Parent. Tr. Vol. 1, 

178:18-179:15 (testimony that Hawaii district told the District that records had been provided to 

the Parent to give to the District); Tr. Vol. 2, 189:6-25 (testimony that the District has made 

“numerous” requests of records from the Parent). The testimony in the record is that the number 

of times the District has tried to obtain Student’s records numbers in the “high teens or low 

twenties at a minimum.” Tr. Vol. 2, 238:5-21.

In fact, the District had to ask one of the Parent’s witnesses during hearing whether she 

could forward the Student’s records to the District. Tr. Vol. 4, 134:7-135:14. The Parent did not 

provide any previous ESY data at November meeting.

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Next, when the District set it up so that a member of Student’s previous IEP team from 

Hawaii could call in and share her knowledge of the Student, it was the Parent who dismissed 

her. Tr. Vol. 2, 184:16-185:1. 

When the Parent has requested meetings to discuss Student’s IEP the District has agreed 

to meet. Tr. Vol. 2, 34:14-35:10. In fact, the District has even brought in an ODE facilitator to 

make sure all of the Parent’s concerns were addressed. Ex. D4 and Tr. Vol. 1, 107:17-108:4. 

Additionally, the District complied with all records request with the Parent, and when the Parent 

requested that the District keep track of daily behaviors (“tally data”) the District complied. 

Ironically, it is now this data that the Parent is using to attack the District’s ESY determination.

Additionally, the District has proceeded with the underlying case (i.e., DP 14-104) and 

appeal in an expeditious manner. For instance, the District has filed an appeal of the Order 

within two weeks of the Order even though (1) the vast majority of District staff is currently on 

summer break, and (2) the District has 90 days as a matter of law to file an appeal. The 

timeliness of action by the District and a District’s willingness resolve a disagreement in a timely 

manner is an important issue to consider when looking at the equity of the District. See Eley v. 

District of Columbia, WL 2507937, 15 (D.D.C., 2014) (the fact that parent had been,

“struggle[ing] over the last four years to obtain a FAPE from the [district], with the majority of 

administrative decisions and Court opinions in the plaintiff's favor, and the long delay until the 

middle of the most recent school year in the defendant's designation, for the first time, of a 

location for implementation of the IEP, the equities decidedly do not favor the [district].”).

In summary, this is a District that has gone above and beyond to acquire all of the 

information it can to make an appropriate ESY determination in a comprehensive and timely 

manner.

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D. It Is In The Public’s Interest To Wait To Give Out Public Funds Until It Is Certain 

That Such A Remedy Is Appropriate And To Grant Remedies That Are Not 

Detrimental To Students

Granting this Motion would not affect any member of the public other than Student. 

And, as stated before, if the District’s substantive appeal was unsuccessful the Student could be 

made whole by granting compensatory education. On the other hand, if the Motion is denied and 

then the District is successful in its substantive appeal the District will not be able to collect for 

services already provided to Student. Courts have noted that it is “in the public interest for 

government costs to be minimized.” Washington v. District of Columbia, 530 F.Supp.2d 163, 

173 (D.D.C.2008)).

Lastly, it is in the best interest of the public for courts to grant remedies under current 

IEPs, unless those IEPs have been found to be deficient. Here, nothing in the Student’s IEP 

(including the Short-Term Goals and Objectives) has been found to be lacking by the ALJ other 

than the fact that the District denied ESY to Student. However, without any explanation the ALJ 

has ordered the District to provide services under a long-outdate IEP. Even assuming it is 

appropriate for ESY services to be provided immediately, before the appeal is decided, this is 

still the wrong remedy to implement.

III. CONCLUSION

Because the (1) the District’s substantive appeal will likely be successful on its merits, 

(2) a denial of this Motion for TRO would cause the District to suffer irreparable harm, (3) the 

balance of equities is in the District’s favor, and (4) a Motion to Stay is in the public’s interest,

the court should grant this Motion to Stay.

Case 1:14-cv-01115-PA Document 2 Filed 07/14/14 Page 16 of 18
 

17 – MOTION FOR TEMPORARY RESTRAINING ORDER

Dated: July 14, 2014.

THE HUNGERFORD LAW FIRM

/s/ Rich G. Cohn-Lee_______________ 

Rich G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

THE HUNGERFORD LAW FIRM

Telephone: (503) 781-3458

Facsimile: (503) 655-1429

Of Attorneys for Plaintiff–Appellant

Case 1:14-cv-01115-PA Document 2 Filed 07/14/14 Page 17 of 18
 

18 – MOTION FOR TEMPORARY RESTRAINING ORDER

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing DISTRICT’S OPENING BRIEF on the 

following named person on the date indicated below by:

[ ] mailing with postage prepaid;

[ ] hand delivery;

[ x ] electronic delivery;

[ ] overnight delivery

to said person a true copy thereof at their last-known address indicated below:

Ray Parenteau

1370 SW David Drive

Grants Pass, OR 97527

 Pro se for Defendant-Appellee

DATED: July 14, 2014.

THE HUNGERFORD LAW FIRM

/s/ Rich G. Cohn-Lee_______________ 

Rich G. Cohn-Lee, OSB No. 952331

E-mail: Rich@hungerfordlaw.com

Joel E. Hungerford, OSB No. 140940

E-mail: Joel@hungerfordlaw.com

THE HUNGERFORD LAW FIRM

Telephone: (503) 781-3458

Facsimile: (503) 655-1429

Of Attorneys for Plaintiff–Appellant

Case 1:14-cv-01115-PA Document 2 Filed 07/14/14 Page 18 of 18