must contribute $ 50 per month from her disability payments of $ 700 per month. Robert's father and stepmother are supporting two other children. See Affidavit of Lori S. Schreier, dated Feb. 16, 1996, at P 27. Clearly, the hardships imposed on plaintiffs by the Family Court's support order substantially outweigh any slight harm that DSS might suffer if the support payments were suspended pending the outcome of this litigation.
III. Irreparable Harm
Plaintiffs contend that they will be irreparably harmed if they are forced to continue to make support payments during the pendency of this action. It is axiomatic, however, that "when a party can be fully compensated for financial loss by a monetary judgment, there is simply no compelling reason why . . . a preliminary injunction should be granted." Borey v. National Union Fire Insur. Co., 934 F.2d 30, 34 (2d Cir. 1991). Furthermore, plaintiffs must establish that in the absence of a preliminary injunction, irreparable harm is not merely possible but likely. See id.
Plaintiffs have failed to present evidence that they are likely to suffer harm that could not be fully compensated, if they are successful on the merits of this action, by an award of damages reimbursing them for the support payments that they have made. Robert's mother indicated at the preliminary injunction hearing that she fears that she may have to sell her house if the payments are not suspended. (Tr. 43) The evidence about her financial situation does not persuade us that this result is likely. After her mortgage payment, Robert's mother has approximately $ 1250 per month for other expenses, which do not include supporting any other children. While this is certainly not a large income, she has not established that she is likely to suffer irreparable harm. The financial situation of Robert's father and stepmother seems more precarious, but the affidavit setting forth that information did not include a statement of the likely consequences of continued payments. See Schreier Aff., at P 27. Robert's father and his stepmother did not testify at the preliminary injunction hearing.
Moreover, we note that N.Y. Fam. Ct. Act § 415 directs the Family Court to set a support payment amount that is "fair and reasonable." We feel confident in stating that such a standard does not encompass the entry of a support order that would drive the plaintiffs into bankruptcy or otherwise cause them irreparable financial harm. Before entering the support order, the Family Court held a hearing, at which the plaintiffs appeared and were represented by counsel (Tr. 38), expressly to examine the issue of what a fair and reasonable payment amount would be under their circumstances. We believe that the Family Court's determination is entitled to some deference from this court. It may be that we will determine that the Family Court may not order any support payments at all in this case because the IDEA mandates that Robert's placement be free to his parents. That does not mean, however, that in the interim, we should entirely disregard the Family Court's evaluation of the parents' financial situation.
Plaintiffs argue that they do not have to prove that they will suffer irreparable harm, financial or otherwise, in order to prevail. According to plaintiffs, irreparable harm is presumed because they are contending that their federal statutory rights under the IDEA have been violated by DSS's actions. We disagree. It is clear that the mere assertion that a plaintiff's federal statutory rights have been violated does not create a presumption of irreparable harm. Otherwise, the courts would presume irreparable harm in deciding every preliminary injunction motion made in cases brought under federal statutes. That is certainly not the law.
In support of their argument, plaintiffs cite a handful of cases in which courts have held that irreparable harm may be presumed where the nonmovants had failed to comply with a federal statutory requirement. The application of this doctrine is limited, however, to "exceptional cases," which are "comparatively rare." Essex County Preservation Ass'n v. Campbell, 536 F.2d 956, 962 (1st Cir. 1976). Plaintiffs have not persuaded us that this case, which is quite dissimilar on its facts from any of the decisions that they cite, fits that description. Compare e.g., Lathan v. Volpe, 455 F.2d 1111, 1116-17 (9th Cir. 1971) (ordering district court to grant preliminary injunction halting acquisition of land for highway project until highway administrators complied with certain requirements of Federal-Aid Highway Act and National Environmental Policy Act); Community Nutrition Instit. v. Butz, 420 F. Supp. 751, 757 (D.D.C. 1976) (preliminarily enjoining Dept. of Agriculture regulation permitting sale of machine-deboned meat where agency failed to comply with notice and participation requirement for rulemaking under Administrative Procedure Act). To the contrary, at least one court in this circuit has indicated that a plaintiff must demonstrate irreparable harm before the court may grant a preliminary injunction relieving the parent of the cost of a placement for which he would otherwise be responsible pending the outcome of litigation. See Antkowiak, 621 F. Supp. at 980.
The Second Circuit has stated that "perhaps the single most important prerequisite for the issuance of a preliminary injunction" is a demonstration that irreparable harm is likely if it is not granted. Borey, 934 F.2d at 34 (internal quotation omitted). Plaintiffs have failed to demonstrate that they are likely to suffer irreparable harm if we do not grant the preliminary injunction that they seek. Therefore, plaintiffs' motion is denied. To minimize the burden on plaintiffs, this case will be set for trial on the merits as soon as possible.
Plaintiffs' motion for a preliminary injunction is denied.
Date: April 24, 1996
White Plains, New York
William C. Conner
Senior United States District Judge