[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 07 2008
No. 07-14291 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00562-CV-1-KD-M
C. B.,
by his parent and next friend,
Plaintiff-Appellant,
versus
BOARD OF SCHOOL COMMISSIONERS OF MOBILE CO., AL,
HAROLD S. DODGE,
ANDREA BARBOUR,
JACQUELYN ZIEGLER,
KEN MEGGINSON, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 7, 2008)
Before ANDERSON, HULL and FAY, Circuit Judges.
PER CURIAM:
C.B., by his parent, next friend, and legal guardian, L.B., appeals the district
court’s denial of his motion for a preliminary injunction to force the Board of
School Commissioners of Mobile County (“School Board”) to grant his application
to transfer to a different elementary school or, alternatively, enjoin the School
Board from acting on any transfer applications in order to maintain the status quo.
As an initial matter, to the extent C.B. argues that we should exercise our
discretion to expedite review of his appeal, his claim is moot. We granted in part
C.B.’s motion for expedited appeal, and, accordingly, we need not address his
arguments concerning that issue.
CB argues that the School Board violated the Americans With Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C.
§ 794, when it denied him a school benefit based on his “unacceptable attendance,”
which consisted of absences directly related to his disabilities of diabetes and
Attention Deficit Hyperactivity Disorder (“ADHD”). C.B. asserts that federal
courts have granted injunctive relief in ADA cases where the alleged
discrimination would result in the student-plaintiff losing a year of school or a
season of athletic or extracurricular activities. C.B. argues that he is entitled to
injunctive relief because the denial of an educational benefit constitutes irreparable
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harm per se. C.B. further argues that the district court applied the incorrect
standard in ruling on his motion for a preliminary injunction, asserting that
irreparable harm is presumed where a plaintiff can demonstrate that a federal
statute, such as the ADA, has been violated. C.B. also asserts that in Ala.-
Tombigbee Rivers Coalition v. Dept. of Interior, 26 F.3d 1103 (11th Cir. 1994), we
similarly affirmed injunctive relief without engaging in an irreparable harm
analysis.
For the reasons set forth more fully below, we affirm.
We review a district court’s denial of a preliminary injunction for an abuse
of discretion, but do not review the intrinsic merits of the case. See Sierra Club v.
Georgia Power Co., 180 F.3d 1309, 1310 (11th Cir. 1999). “Only where the
district court misapplies the law will we refuse to defer to its conclusions
supporting its denial of relief.” Haitian Refugee Center, Inc. v. Christopher, 43
F.3d 1431, 1432 (11th Cir. 1995). “A district court may grant injunctive relief
only if the moving party shows that: (1) it has a substantial likelihood of success on
the merits; (2) irreparable injury will be suffered unless the injunction issues;
(3) the threatened injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) if issued, the injunction would
not be adverse to the public interest.” Siegel v. Lepore, 234 F.3d 1163, 1176 (11th
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Cir. 2000) (citations omitted). The movant must carry his burden as to each of the
four prerequisites. Even if the movant establishes a substantial likelihood of
success on the merits, his failure to establish irreparable injury “would, standing
alone, make preliminary injunctive relief improper.” Id. “[T]he asserted
irreparable injury must be neither remote nor speculative, but actual and
imminent.” Id. (quotation omitted).
In this case, the district court did not abuse its discretion by denying C.B.’s
motion for a preliminary injunction because he failed to establish that he would
suffer immediate and irreparable harm if such relief were not granted. See id. C.B.
does not provide any evidence that the district court’s decision to maintain the
status quo in the present case constitutes irreparable harm. To the contrary, the
evidence in the record indicates that the School Board has not denied educational
services to C.B. altogether, but has denied authorization for him to receive those
services at the school of his choice. Moreover, the record also indicates that he can
continue to receive educational services at his neighborhood school while the
underlying case is pending in the district court. Although C.B. asserts that other
courts have granted injunctive relief in favor of students who were denied school
benefits, and further asserts that the denial of such benefits constitutes irreparable
harm per se, the cases he cites in support of this claim are factually distinguishable
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as they address situations where students were at risk of being excluded from
school attendance or participation in school activities for an entire year.
Moreover, to the extent C.B. argues that the district court should have
applied a presumption of irreparable harm and, presumably, granted relief solely
on that basis, his argument is misplaced. C.B. contends that we should follow
other courts, such as the Seventh Circuit and the Eighth Circuit, which have held
that “where the plaintiff seeks an injunction to prevent the violation of a federal
statute that specifically provides for injunctive relief, it need not show irreparable
harm.” Ill. Bell Tel. Co. v. Ill. Commerce Com., 740 F.2d 566, 571 (7th Cir.
1984); see also Burlington N. R.R. Co. v. Bair, 957 F.2d 599, 601 (8th Cir. 1992)
(holding that “where Congress expressly provides for injunctive relief to prevent
violations of a statute, a plaintiff does not need to demonstrate irreparable harm to
secure an injunction”). These circuits, however, have subsequently explained that
“unless a statute clearly mandates injunctive relief for a particular set of
circumstances, the courts are to employ traditional equitable considerations
(including irreparable harm) in deciding whether to grant such relief.” Bedrossian
v. Northwestern Mem. Hosp., 409 F.3d 840, 843 (7th Cir. 2005) (citing
Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 102 S.Ct. 1798, 1803, 72
L.Ed.2d 91 (1982)); see also In re Sac & Fox Tribe of the Mississippi in Iowa, 340
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F.3d 749, 760-62 (8th Cir. 2003) (applying a four-factor test in the absence of
express statutory authority mandating injunctive relief).
Similarly, C.B.’s reliance upon our decision in Ala.-Tombigbee Rivers
Coalition is also misplaced. Although we affirmed the district court’s grant of
permanent injunctive relief without applying the traditional four-factor test in that
case, we did so based on a finding that the district court had the authority to grant
injunctive relief where a federal statute had been violated and that the statute at
issue, the Federal Advisory Committee Act, would be eviscerated if such relief
were not granted. See 26 F.3d at 1106-07. Here, the district court did not
expressly find that the ADA had been violated and C.B. did not present any
evidence that the failure to grant injunctive relief would circumvent the purpose of
the statute. Accordingly, the district court did not misapply the law in denying
C.B.’s motion for injunctive relief.
In light of the foregoing, the denial of C.B.’s motion for preliminary
injunction is
AFFIRMED.
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