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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.


 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:

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