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Corey H., Latricia H., andrew B., and Jason E., By Their Parents and v. the Board of Education of the City of Chicago

September 10, 2012

COREY H., LATRICIA H., ANDREW B., AND JASON E., BY THEIR PARENTS AND NEXT FRIENDS, SHIRLEY P., BEVERLY HL, SHARON B., AND STEPHEN E., ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS,
v.
THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, AND THE ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER DENYING CPS MOTION TO STAY

PENDING APPEAL

Defendant Board of Education of the City of Chicago ("Chicago Public Schools" or "CPS") has filed a motion to stay all proceedings in this case (Doc. 894-895) pending its appeal of this court's July 19, 2012 Order (Doc. 886) denying its "first" Fed. R. Civ. P. 60 motion to vacate the 1998 Consent Decree.*fn1 For the reasons discussed below, the court denies CPS's motion to stay.

The parties agree on the familiar standards required to justify a stay pending appeal. As CPS articulates those standards (Doc. 895):

(1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits;

(2) whether the applicant will be irreparably harmed absent a stay;

(3) whether issuance of the stay will substantially injure the other parties; interests in the litigation; and

(4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987). If the party seeking the stay meets the "likelihood of success" and "irreparable harm" factors, then the district court must consider all four factors using a sliding scale approach. Matter of Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300-01 (7th Cir. 1997). If the movant fails to make the requisite showing of a strong likelihood of success, or irreparable harm, or both, the analysis must end there and the stay must be denied. Id. CPS has failed to come close to meeting any of these requirements.

First, in its July 19, 2012, Opinion, this court found that CPS's first motion to vacate was "near frivolous" for a number of reasons that need not be repeated here. Obviously, had the court thought that an appeal of that decision would be successful, it would not have ruled as it did. Nonetheless, there is always a possibility that the court of appeals will disagree, and under Hilton, the court must determine CPS's chances of convincing the court of appeals to do so. And while CPS need not demonstrate that it has a "probability" of success, something less than a 50% chance is sufficient, it must demonstrate a "substantial case on the merits." Thomas v. City of Evanston, 636 F. Supp. 587, 590 (N.D. Ill. 1986). Nothing, however, in CPS's motion to stay, which mainly regurgitates the arguments it made in its first motion to vacate, changes the court's opinion as to the merits.*fn2 Consequently, the court finds that CPS has failed to demonstrate that it has a strong likelihood of success on the merits of its appeal of that decision. For this reason alone, the request for a stay must be denied.

Second, CPS cannot demonstrate that it would suffer irreparable harm without a stay. CPS's obligations under the Consent Decree ended on August 31, 2012. Contrary to the position CPS takes in its reply brief in support of its motion to stay, no purpose is served in attempting to vacate the Consent Decree, because the Consent Decree itself has ended. The only remaining obligations of any of the parties are under the Agreed Order to Extend Certain Obligations Under the Board of Education of the City of Chicago's Settlement Agreement (Doc. 729; the "Extension Agreement"), under which CPS committed in November 2010 to cooperate with the Monitor in the preparation of her final report. These minimal obligations are entirely separate from those CPS assumed under the Consent Decree. Although CPS complains about complying with its obligations under the Extension Agreement, and is expressly fearful of the Monitor's report, it has never sought specifically to vacate the Extension Agreement.

Consequently, CPS's only remaining obligations involve its cooperation with the Monitor and, if it chooses, responding to her final report, as it agreed to do in the Extension Agreement. That report, like the Monitor's report on ISBE compliance with its Consent Decree, has no injunctive effect and is the product of the compromise reached among ISBE, CPS and the plaintiffs in bringing this case to a conclusion.

CPS complains that it will suffer irreparable harm by having to pay attorney's fees and the Monitor's fees pursuant to its previous commitments in connection with these obligations. As plaintiffs point out, such fees will be minuscule compared to the fees it has paid to plaintiffs' counsel, the Monitor, and its own outside counsel over the 14 years since the Consent Decree was entered. In any event, monetary expenditures rarely support a claim of irreparable harm, and unrecoverable costs of litigation such as attorney's fees never do, "otherwise every interlocutory ruling in litigation would be subject to immediate appellate review . . . ." In re National Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir. 2003). "Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury." Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974).

Moreover, even if such costs could constitute irreparable injury, in the context of this litigation the modest fees to be incurred in the course of winding up this case come nowhere close to meeting this standard. As plaintiffs point out, the fees CPS will likely incur wrapping up the case are insignificant compared to the fees plaintiffs have expended and will expend in the future defending CPS's two motions to vacate, the Seventh Circuit appeal, and the instant motion to stay, all brought on the eve of the expiration of the Consent Decree. The court thus finds that the minimal exposure to CPS from its obligation to pay fees, along with the fact that these fees were agreed to and contemplated by CPS when it entered into the ...


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