concurring.
I concur in the majority’s ruling affirming the district court’s denial of appellants’ application for a preliminary injunction, but my concurrence extends to the entry of final judgment against appellants only because of appellants’ failure to raise on appeal the issue of the district court’s error in consolidating the disposition of the application for a preliminary injunction with the trial on the merits. I recognize that such consolidation is expressly permitted by Federal Rule of Civil Procedure 65(a)(2). However, as the Supreme Court has recently stated:
Before such an order [consolidating an action on the merits with a hearing on an application for a preliminary injunction] may issue ... the courts have commonly required that “the parties should normal*155ly receive clear and unambiguous notice either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.”
University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981) (citations omitted). The rationale for such procedure is that, in the preliminary injunction context, “the parties generally will have had the benefits neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy.” Id. at 396, 101 S.Ct. at 1834.
Indeed, such procedure takes on a constitutional dimension. As the Court of Appeals for the Fourth Circuit has stated, addressing a situation in which the trial court first announced its intention to consider action under Rule 65(a)(2) at the conclusion of trial:
To grant judgment on the merits under Rule 65(a)(2) without any notice of such intention until the conclusion of the evidentiary hearing on the motion for a preliminary injunction and to grant such judgment on an “intimated” motion to dismiss, treated without prior notice as a motion under Rule 56, all without requiring answers to interrogatories or permitting any discovery in a case which, on the pleadings at least, is not frivolous, comes perilously close to a violation of due process.
Gellman v. State of Maryland, 538 F.2d 603, 606 (4th Cir.1976).1
The Third Circuit has adopted this stringent standard for application of Rule 65(a)(2). In Fenstermacher v. Philadelphia National Bank, 493 F.2d 333, 337 (3d Cir.1974), this' court stated that “consolidation ... must be accompanied by notice to the parties, either before or after the commencement of the hearings,' sufficient to enable them to present all evidence.” Affirming the district court’s consolidation where the lower court opinion had stated that the parties agreed that no additional evidence would be introduced were there to be a trial on the merits, and where the plaintiff had failed to object to the proposed consolidation, himself submitting a proposed final order after the preliminary injunction hearing, the court nevertheless went on to say:
It would be advisable in the future for district courts, when contemplating consolidation of the trial of the action on the merits with the hearing of an application for a preliminary injunction, promptly to notify counsel and request an affirmative, on the record, response, especially where jury trial rights may be involved.
493 F.2d at 337.
In this matter, the court below entered an order even dated with its opinion denying plaintiffs’ application for injunctive relief, consolidating the preliminary injunction application with the trial and closing the case, essentially entering judgment for defendants.2 No notice was given the parties; indeed, this was a case in which the court apparently decided to consolidate the hearing on the application for a preliminary *156injunction with the trial on the merits after the hearing itself. Although it is permissible under the Rule to announce such consolidation after the commencement of a hearing, “[t]he order cannot come so late in the hearing that it is impossible for the parties adequately to develop their entire case.” Warehouse Groceries Management, Inc. v. Sav-U-Warehouse Groceries, Inc., 624 F.2d 655, 658 (5th Cir.1980) (notice after hearing held inadequate). Unlike the situation in Fenstermacher, the district court in this case did not and apparently could not represent that the parties would introduce no more evidence were there to be a trial on thé merits. Rather, the court merely indicated that the parties had agreed that there would be no additional submissions for purposes of the preliminary injunction application, and that the parties would rely on the affidavits and memoranda already submitted. In fact, it appears that the court’s ruling was based entirely upon the papers. See Appellant’s Brief at 7.
Appellants were thus prejudiced by being deprived of an opportunity to present their case.3 This is all the more so in that the primary basis for the court’s denial of appellants’ application for injunctive relief was that there had been no showing of irreparable harm. While I do not disagree with that finding, it provides no basis for dismissal of this case, especially because there remains the possibility that damages may be available. See Majority Typescript at 150 n. 1. Moreover, to the extent that the district court’s decision was based upon appellants’ failure to show a likelihood of success on the merits, such failure does not mean that “there was no conflict of material fact which justified the holding of a full trial on the merits.” See, e.g., United States ex rel. Goldman v. Meredith, 596 F.2d 1353, 1358 (8th Cir.1979). Given the opportunity, appellants might well have marshalled additional facts to support their conclusion that the change in Lorin’s mode of transportation constituted a change in educational placement for purposes of the EHA, a conclusion which the majority recognizes as conceivable. Majority Typescript at 153-154. The district court’s summary disposition of this matter precluded such further evidence.
Normally, this would constitute reversible error. However, because I agree with the majority that appellants failed to raise this issue on appeal or to object to it below, by motion for reconsideration or otherwise, I concur.
. See also Paris v. U.S. Dept. of Housing and Urban Development, 713 F.2d 1341, 1345 (7th Cir.1983); Consumers Union of the United States v. Consumer Products Safety Commission, 561 F.2d 349, 356 n. 33 (D.C.Cir.1977) (citing cases); Acha v. Beame, 531 F.2d 648, 651 (2d Cir.1976); Penn v. San Juan Hospital, 528 F.2d 1181, 1187 (10th Cir.1976); Santiago v. Corporacion de Renovacion Y Vivienda de Puerto Rico, 453 F.2d 794, 797-98 (1st Cir.1972); Puerto Rican Farm Workers v. Eatmon, 427 F.2d 210, 211 (5th Cir.1970). See generally 11 C. Wright & A. Miller, Federal Practice and Procedure § 2950 at 486-93 (1973 and 1983 Supp.); 7.2 Moore Federal Practice ¶ 65.04[4] (1984).
. The court's ruling to this effect was embodied in a footnote to its order, which footnote stated:
Because the parties indicated at, and directly after, the conference in Chambers that they were relying on the affidavits and memoranda that had been submitted up to that point and that there would be no further submissions from either side, we think it appropriate to consolidate the instant motion with the trial on the merits of this action. See Fenstermacher v. Philadelphia National Bank, 493 F.2d 333 (3d Cir.1974). Moreover, any further submissions would necessarily be that which is being presented in the pending administrative hearing.
. Some courts require a showing of prejudice in order to reverse on the basis of improper consolidation. See, e.g., Holly Sugar Corp. v. Goshen County Cooperative Beet Growers, 725 F.2d 564, 568 (10th Cir.1984); Glacier Park Foundation v. Watt, 663 F.2d 882, 886 (9th Cir.1981), citing Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096, 1106 (5th Cir.1972).