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September 19, 1990

DR. ROBERT R. FREEMAN, et al., Plaintiffs,
LAURO CAVAZOS, et al., Defendants

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER



 Plaintiff Robert R. Freeman is the superintendent of the DeKalb County School District ("School District"), located in and around Atlanta, Georgia. Along with the School District, in his official capacity he sues Defendants Lauro Cavazos, Secretary of the Department of Education, and the United States Department of Education ("the Department"). Before the Court now is a motion for a temporary restraining order. For the reasons stated below, this motion is denied.


 This action arises out of a longstanding dispute between the School District and the Department. Since the end of the 1970s, the Department has received complaints concerning the School District's provision of services to disabled students. Operating under the authority of regulations promulgated pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Section 504"), the Department's Office of Civil Rights ("OCR") has attempted to investigate these complaints. The School District has refused to allow these investigations because, it claims, the regulations promulgated under Section 504 exceed the authority of that Section and conflict with the procedures Congress mandated in the Education of the Handicapped Act. See 20 U.S.C. § 1400, et seq. (1988) ("EHA").

 The dispute reached a head in 1984 when the OCR commenced administrative proceedings to require compliance with OCR regulations. The School District initially sought to enjoin these proceedings on the theory that the regulations were issued without proper authority. It filed suit in the District Court for the Northern District of Georgia, where the School District is located. The District Court dismissed the School District's suit for lack of subject matter jurisdiction due to the failure to exhaust administrative remedies. See Order, Rogers v. Bennett, No. 86-1304A (N.D. Ga. Sept. 30, 1987). That decision was affirmed upon appeal in Rogers v. Bennett, 873 F.2d 1387 (11th Cir. 1989). The plaintiffs accordingly returned to the administrative proceedings which had been stayed pending the federal actions. The ALJ held the plaintiffs were "not in compliance with the requirement of Section 504 of Rehab by reason of its failure to permit OCR access to information necessary to ascertain compliance with Section 504." Initial Decision of the Presiding Officer at 17, In re DeKalb County School District (U.S. Dep't of Education April 26, 1990), included in Plaintiff's Memorandum in Support of Motion for a Temporary Restraining Order, Attachment 4. The decision did not address plaintiffs' challenge to the propriety of the regulations promulgated under Section 504. Since more than twenty days lapsed without an appeal after the ALJ's decision, that decision constitutes final agency action subject to review by this Court. See 34 C.F.R. § 101.104(a) (1989).

 On August 3, 1990, the Secretary of Education submitted a report on this matter to the appropriate committees of the House and Senate as required by 42 U.S.C. § 2000d-1 (1988). On September 14, 1990, the Department informed the School District


all Federal financial assistance to DeKalb, available directly from the U.S. Department of Education, or disbursed through the Georgia Department of Education, under elementary and secondary and adult education programs, including vocational education programs at the elementary and secondary level, is terminated effective immediately.

 Letter, M. Williams to R. Freeman, September 14, 1990 at 1, included in Defendants' Memorandum in Opposition to a Motion for a Temporary Restraining Order, Exhibit 2. Plaintiffs Freeman and the School District filed this motion for a temporary restraining order that day.



Our Court of Appeals has stated that to determine whether an injunction is appropriate the District Court should balance (1) the likelihood of the plaintiff's success on the merits, (2) the threat of irreparable injury to the plaintiff in the absence of an injunction, (3) the possibility of substantial harm to other interested parties from a grant of injunctive relief, and (4) the interests of the public.

 Wagner v. Taylor, 266 U.S. App. D.C. 402, 836 F.2d 566, 575 (D.C. Cir. 1987) (footnote omitted). The plaintiffs have failed to show the threat of irreparable injury during the finite period before the case can be decided on the merits and they have failed to show plainly a likelihood of success on the merits.

 Although courts consider several different factors in determining whether to grant preliminary injunctive relief, "the basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Sampson v. Murray, 415 U.S. 61, 88, 39 L. Ed. 2d 166, 94 S. Ct. 937 (1974). The harm "must be both certain and great; it must be actual and not theoretical." Wisconsin Gas Co. v. F.E.R.C., 244 U.S. App. D.C. 349, 758 F.2d 669, 674 (D.C. Cir. 1985). Moreover, it must also be irreparable:


Mere injuries, however, substantial, in terms of money, time and energy necessarily expended in the absence of a [TRO] are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation weighs heavily against a claim of irreparable harm.

 Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958).

 Plaintiffs in this case have not shown plainly that they will be irreparably injured if a temporary restraining order is not imposed. The School District stands to lose funding for many of its programs, but has failed to establish that the impact of that loss will be felt before next year because funds have already been appropriated funds for this year's operations. Plaintiff's Motion for a Temporary Restraining Order at 17; Affidavit of Dr. Freeman at 4 - 5. Consequently, a refusal to grant this motion will have no direct effect on the School District's ability to operate during this school year. A motion for a preliminary injunction, indeed even a decision on the merits, could be in place well before the end of the school year in June, or even the beginning of the budgeting process in the spring of next year. There is little danger that in the interim the funds in question will be irrevocably lost. The Department has stipulated that it will not disburse these funds elsewhere pending resolution of this case. See Defendants' Memorandum in Opposition to Motion for a Temporary Restraining Order at 18. Furthermore,


it is well settled that federal courts may award appropriated funds to a successful litigant even after the statutory lapse date if, as here, the suit was initiated on or before that date.

 Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062, 1081 (D.C. Cir. 1986) (citing Connecticut v. Schweiker, 221 U.S. App. D.C. 457, 684 F.2d 979, 996-99 (D.C. Cir. 1982)). Accordingly, the School District has failed to show that it will not receive the terminated funds if it eventually succeeds on the merits of its claim.

 At oral argument, counsel for plaintiffs contended that denial of a TRO would have an irreparable indirect effect. Specifically, counsel argued that denial of the TRO would force the School District to make budget cuts in anticipation of the termination, and the specter of such cuts may, among other things, induce certain teachers to seek employment elsewhere. These contentions are speculative. The School District has not demonstrated the necessity to make irrevocable budgetary decisions during the time it will take a court to hear and rule on a motion for a preliminary injunction, nor that teachers will seek and find alternative employment, much less commit themselves to it, during that period. Uncertainty and the risk of losing millions of dollars in federal funding can certainly be harmful, but plaintiffs have failed to make an adequate showing that such harm will be irreparable.

 The failure of the plaintiffs to show irreparable harm constitutes sufficient grounds for denial of plaintiffs' motion. Furthermore, even if this failure were not enough alone, plaintiffs have not shown a sufficiently clear likelihood of success on the merits to warrant injunctive relief. On the merits, this case presents a complicated question concerning the interaction of two statutes, the EHA and Section 504. It is difficult to determine at such an early stage of this litigation whether or not the plaintiffs are likely to prevail on the ultimate merits. As the Eleventh Circuit observed in the earlier incarnation of this matter,


the authority to issue regulations under section 504 is not entirely clear. Nevertheless, . . . the Department was not plainly without authority in so acting.

 Rogers, 873 F.2d at 1394 (emphasis in original and footnote omitted).

 There has been an opportunity, however, to make a tentative judgment that plaintiffs are not likely to prevail on their contention that this action lies in this court as distinguished from the United States District Court for the Northern District of Georgia, or the Court of Appeals for the Eleventh Circuit. Resolution of the jurisdictional challenges brought by the Department again involves some apparently original questions of statutory interpretation. Section 504 incorporates by reference Title VI enforcement procedures which in turn provide that judicial review shall be determined by looking to the review provisions for "similar actions taken by such department or agency on other grounds." 42 U.S.C. § 2000d-2 (1988). Both parties have provided plausible options, and it cannot be said that one option is clearly superior.

 There is, however, an additional question, the answer to which is clearer: the question of venue. See 28 U.S.C. § 1404(a) (1988). In determining whether to transfer this case, it is probative that plaintiffs are a Georgia public body and a Georgia public official, that they filed their first complaint on the subject in the United States District Court for the Northern District of Georgia, and that they appealed that court's adverse decision to the United States Court of Appeals for the Eleventh Circuit. Moreover, in affirming the District Court's dismissal of this earlier complaint, the Eleventh Circuit specifically contemplated the possibility that after the administrative process had run its course defendants might terminate federal funding of plaintiffs' program -- as has now occurred. Said the Court of Appeals:


Requiring exhaustion will not preclude the appellants from having an opportunity to dispute the OCR's jurisdiction to investigate alleged violations of section 504: should the Department eventually terminate federal funding for the Georgia special education programs, the educators can appeal the agency's action by refiling this suit in the district court.

 Rogers v. Bennett, 873 F.2d at 1394 (emphasis added).

 Its also important that the briefs and arguments suggest this controversy is of conspicuously local interest, i.e. local to DeKalb County and the State of Georgia. At argument, plaintiffs contended that the sole question was the validity of defendants' regulations with respect to what it describes as "affirmative action." But, in another phase of the argument, plaintiffs indicated that the controversy involves complaints of particular parents in Georgia about particular actions and about these particular plaintiffs' refusal to permit defendants' investigation of local parental complaints. Also, in all candor, there are emanations of forum shopping in the plaintiffs' decision to file in this court rather than in the court which has familiarity with this action. Finally, the preference for administration of this case in one of the federal courts in Georgia is not diminished by the Supreme Court's decision in Bowen v. American Hospital Ass'n, 476 U.S. 610, 90 L. Ed. 2d 584, 106 S. Ct. 2101 (1986). That case originated in a district court but it was the District Court for the Southern District of New York, the corporate home of at least one of the plaintiffs in that case.

 Defendants' motion to dismiss and plaintiffs' opposition to that motion are now before the Court, and there has been an extensive argument. In the argument, plaintiffs indicated an intention to take up to twenty depositions and to raise factual questions which might not be resolvable by summary judgment. In the circumstances, resolution of the venue issue would be facilitated by proffers or affidavits about the convenience of the parties and witnesses and the interest of justice in further proceedings in the District Court or the Court of Appeals in Georgia rather than in this district and circuit. See 28 U.S.C. § 1391(e) (1988) (authorizing plaintiffs to bring a civil action against an employee of the United States acting in his official capacity in any judicial district in which, among other things, the cause of action arose or the plaintiff resides); see also 28 U.S.C. §§ 1402 and 1404(a) (1988). Accordingly, the accompanying Order will deny plaintiffs' motion for a temporary restraining order and invite the parties to submit simultaneous supplemental briefs addressing the jurisdiction and venue questions of whether this matter should be dismissed or transferred either to the Court of Appeals for the Eleventh Circuit or to the District Court for the Northern District of Georgia.

 ORDER - September 20, 1990, Filed

 For the reasons stated in the accompanying memorandum and at oral argument, it is this 19th day of September, 1990 hereby

 ORDERED: that plaintiffs' motion for a temporary restraining order should be, and is hereby, denied; and it is further on or before September 30, 1990,

 ORDERED: that the parties may on or before September 30, 1990, submit simultaneous supplemental memorandum on the jurisdiction and venue issues of whether this matter should be dismissed or should be transferred and, if so, whether to the Court of Appeals for the Eleventh Circuit or to the District Court for the Northern District of Georgia.


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