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United States Court of Appeals,
Fifth Circuit.
Nos. 918113, 928056.
SHERRI A.D., ETC., ET AL., PlaintiffsAppellants,
v.
W.N. KIRBY, COMMISSIONER OF EDUCATION OF THE TEXAS EDUCATION
AGENCY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, ET AL.,
Defendants,
and
TEXAS EDUCATION AGENCY and TEXAS SCHOOL FOR THE BLIND AND
VISUALLY IMPAIRED (FORMERLY TEXAS SCHOOL FOR THE BLIND),
DefendantsAppellees.
Oct. 19, 1992.
Appeals from the United States District Court for the Western
District of Texas.
Before GOLDBERG, HIGGINBOTHAM and DAVIS, Circuit Judges.
GOLDBERG, Circuit Judge:
With reluctance, we will engage seasoned combatants in the war
over the future welfare, education and happiness of a young woman
with multiple handicaps. The dispute dates back to the birth of
Sherri, A.D., at which time her parents discovered that she was
blind, deaf, and mentally retarded. Unwilling or unable to care
for the infant, they left her in the custody of her aging
grandmother. When Sherri reached age six, the Cameron, Texas
school district decided it would pay for her education, but would
not itself attempt to teach her. Together, the school district and
the grandmother sought and obtained Sherri's admission to a
residential school for handicapped persons.
Sherri had lived for seven years at the Texas School for the

Blind and Visually Impaired in Austin, Texas, when that
institution, together with the state education agency, formulated
new admissions standards to which Sherri did not measure up.
Vigorous disputation took place regarding whether Sherri should be
moved, and if so, where. Many parties wanted a voice in the
decision regarding where Sherri should live and attend school, but
no one seemed to want the responsibility of housing and educating
her themselves.
Sherri's grandmother sought the assistance of legal counsel,
who five years ago filed suit in United States District Court,
presenting many grievances, and a request for certification of a
class action. The district judge referred the case to a magistrate
judge for decision. The referral was one of the last things on
which the combatants were able to agree.
The war intensified, each combatant hauling out increasingly
heavy artillery in the hope of vanquishing his opponents. At one
point, the list of drafted warriors spanned ten pages. Eventually,
many of the soldiers retreated or were excused from the fight.
Five years into the war, the only combatants remaining on the
battlefield were the grandmother, the guardian ad litem, the Texas
Education Agency, and the Texas School for the Blind and Visually
Impaired. These parties temporarily lost their taste for battle,
and sought a truce. Each removed his heavy armor, and sat down at
the same table. However, they were unable to reach a compromise.

Unlike King Solomon, the magistrate judge cannot resolve this
dispute by giving the child to the person who seems most interested
in her welfare. Although many are solicitous for her, no one
particularly wants Sherri--not her parents, not her grandmother, not
the regular schools, not the special schools, and not many of the
alternative facilities which have been explored to date. It is a
strange battle indeed in which the combatants fight not to obtain
possession of the prize, but to foist it off upon someone else.
The combatants have once again taken up their battle stations,
and appear determined to fight on valiantly at all costs. We shall
venture forth from the relative calm of our bunker, hoping to
infiltrate the redoubts and ramparts of the contenders. We shall
attempt at all times to bear in mind the welfare of Sherri, A.D.
First, we shall summarize the legal issues and our conclusions.
Plaintiff Sherri A.D., through her guardian and grandmother
Nell D., appeals from an interlocutory order of a United States
magistrate judge, [February 5, 1991 Order, hereafter "February
Order"] requiring that she be transferred from an institution for
the visually impaired to a community placement as soon as one can
be located or appropriately tailored to fit Sherri's needs.
Plaintiff also appeals interlocutory orders denying a stay of the
February Order, finding the parties in contempt, ordering mediation
and setting a hearing on the matter of contempt.1 Although it
1This court stayed the February Order and the contempt
proceedings pending the outcome of this appeal.

appears that plaintiff did not file notice of appeal on the
appointment of a guardian ad litem, she requests that we address
that matter as well. Moreover, on March 29, 1991, an order
granting plaintiff's motion to permit appeal on the question of
class certification was granted by the United States magistrate
judge, although in an order dated June 26, 1991, the magistrate
judge declined to certify that the plaintiff's class action claims
were not frivolous.
Finding that we have jurisdiction to consider the appeal of
the February Order, we affirm the magistrate judge's directive that
Sherri A.D. be moved from the Texas School for the Blind and
Visually Impaired to community-based housing, and that she receive
free, appropriate education in her local public school district
until her eligibility for public education expires.
Because we believe that the other matters plaintiff urges us
to address on interlocutory appeal present no threat of irreparable
harm, and do not relate to any conclusive collateral order
separable from the merits of plaintiff's claims, we decline to
reach them. Although the record is already voluminous, the
district court is in a better position than we are to assess the
merits of these other claims, all of which can be appealed after
entry of judgment without prejudice to any of the parties.
I. BACKGROUND
Twenty year-old Sherri A.D. is profoundly mentally retarded,

deaf and blind. In 1987, a special education hearing officer found
that Sherri functioned cognitively at the level of a child aged
eight to twelve months. Plaintiff now claims that Sherri functions
at the level of a child aged sixteen to twenty-two months.
The special education hearing officer who reviewed her case in
1987 determined that "Sherri might reasonably be expected to
progress at an extremely slow rate and will exit public education
at age twenty-two2 functioning at the cognitive level of a small
child." All parties to this action agree that an appropriate
educational program for Sherri should include motor development,
communication, socialization and recreational components. Emphasis
must be placed on assisting Sherri to develop independence in the
activities of daily living, such as toileting, washing, and eating.
It is unclear from the record where Sherri lived from birth to
age six. It appears, however, that she was not institutionalized,
although she functioned then, as now, at the cognitive level of a
one to two year-old child. In 1978, an "admission, review and
dismissal committee" ["ARD"] of Sherri's local public school
district ["School District"] decided to place Sherri at the Texas
School for the Blind and Visually Impaired ["School for the
Blind"], the only residential institution in Texas established for
the specific purpose of educating blind and visually impaired
people at public expense until they attain age twenty-two.
2Her statutory entitlement to free appropriate public
education will terminate when she attains age twenty-two. See 20
U.S.C. § 1412(2)(B).

In 1985, the School for the Blind and the Texas Education
Agency ["TEA"] developed new eligibility criteria for students at
the School for the Blind. The School for the Blind then notified
Sherri's School District that Sherri might no longer be eligible
for continuing admission to the School. On March 14, 1986, an ARD
convened at the School for the Blind determined that Sherri did not
meet the new eligibility criteria and should be returned to a
community placement and educated by her local School District.
Representatives of the School District initially agreed, but soon
changed their position for reasons not revealed in the record.
On March 27, 1986, Sherri's grandmother, Nell D., acting as
Sherri's guardian and next friend, requested a due process hearing
under the Education for All Handicapped Children Act ["EAHCA"].3
Following the hearing, the School District convened two ARDs to
decide whether the March 14, 1986 ARD had reached the correct
decision. The ARDs convened by the School District found that the
School for the Blind was the least restrictive placement available
to accommodate Sherri's needs.
Because the School District's ARDs reached a different
decision than did the ARD convened at the School for the Blind, and
because Nell D. did not believe she could care for Sherri at home,
Nell D. appealed to a special education hearing officer, alleging
that the School for the Blind's eligibility criteria were
320 U.S.C. § 1400 et seq., now retitled the Individuals with
Disabilities Education Act.

discriminatory or otherwise unlawful, and that the School for the
Blind was the least restrictive environment in which Sherri could
receive free, appropriate special education services to which she
is entitled until age twenty-two. A hearing was held over the
course of sixteen calendar days in late 1986 and early 1987.
On September 1, 1987, the special education hearing officer
rendered a decision, finding that under Board of Education of
Hendrick Hudson Central School District, Westchester County v.
Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982),
Sherri's placement at the School for the Blind was "appropriate,"
because Sherri obtained "educational benefit" from services
provided there. However, the special education hearing officer
found that Sherri should nevertheless be transferred from the
School for the Blind to a community placement, because the School
for the Blind was not the least restrictive environment in which
Sherri could receive specialized education services from which she
would obtain educational benefit.
The hearing officer noted that the record "clearly
reflect[ed]" that the School District had placed Sherri at the
School for the Blind with the intent of "leaving the child in the
charge of that facility for the remainder of the child's public
education career." Thus, the School District's actions amounted to
an attempt to "dump" this difficult-to-serve child in an
institution and leave her there, in violation of the mandate to
serve children with special needs in the least restrictive

environment (presumptively the community).4
The School District has had a program for severely handicapped
students since 1974, but according to the special education hearing
officer's September, 1987 decision, the School District "admits
that it has never taken steps to modify or upgrade the facilities
4The hearing officer reviewed the EAHCA and relevant Texas
regulations governing residential placements of public school
children and concluded that the laws evinced a preference for
placements in the community, and in case of institutional
placements, a "continuing effort ... to return the child to his
or her home." The hearing officer noted that "the applicable law
does not envision residential placements in any institution,
public or private, as a permanent solution to the child's
educational needs. [E]xcept in the most extreme circumstances,
the residential placement is properly viewed as a temporary
solution in order to buy time for the resident district to gear
up to serve the child locally." We believe the special education
hearing officer correctly assessed the law. Compare 19
Tex.Admin.Code § 89.227(g)(1)(B)(iii) ("A residential application
will not be approved if the application indicates ... [t]he
district does not have a plan with time lines and criteria for
returning the student to the local school program") with 20
U.S.C. § 1401(18) ("The term "free appropriate public education"
means special education and related services which ... meet the
standards of the State educational agency"), and 20 U.S.C. §
1412(5) (requiring participating states to put in place
"procedures to assure that, to the maximum extent appropriate,
handicapped children, including children in public or private
institutions or other care facilities, are educated with children
who are not handicapped, and that special classes, separate
schooling, or other removal of handicapped children from the
regular educational environment occurs only when the nature or
severity of the handicap is such that education in regular
classes with the use of supplementary aids cannot be achieved
satisfactorily"). See also David D. v. Dartmouth School
Committee, 775 F.2d 411, 417419 (1st Cir.1985), cert. denied,
Massachusetts Department of Education v. David D., 475 U.S. 1140,
106 S.Ct. 1790, 90 L.Ed.2d 336 (1986). (finding that the
"federal right to a free appropriate public education
incorporates substantive rights authorized by state special
education law which become part of the federal core right");
Rowley, 458 U.S. at 20203, 102 S.Ct. at 3049 (noting that the
"mainstreaming preference" of the EAHCA means that the Act
"requires participating States to educate handicapped children
with nonhandicapped children whenever possible").

for the purpose of serving Sherri or any other individual student,"
and until the School for the Blind attempted to discharge Sherri,
"[did] nothing to attempt to bring Sherri home." The special
education hearing officer considered the necessary changes to the
School District's day program to be minimal (obtaining the services
of a vocational teacher and certain facilities required to teach
laundry sorting, feeding skills, and other activities of daily
living). The School District's expert witness, a special education
teacher who developed and drafted the individualized educational
plan ["IEP"] adopted by the School District's ARD, conceded that
the School District could educate Sherri in its day program with
some minor alterations thereto. However, the special education
teacher expressed "concern ... that the degree of consistency
necessary to guarantee success could not be provided in the living
environment provided by Sherri's guardian [her grandmother]."
Despite the concern that Sherri's grandmother might be
incapable of providing all the supportive services required by
Sherri, the special education hearing officer decided that Sherri
should be placed in one of the School District's day-school
programs, which she would attend while living with her grandmother
or in some other community-based residence designated by her
grandmother. The person with whom Sherri would reside was to
receive special counselling on how best to care for Sherri. The
School District was directed to convene an ARD to develop for
Sherri a program of education and related services to be delivered
in a community setting. Any services the ARD considered

unavailable in the School District were to be specifically
described in a statement to the Superintendent and Board of
Trustees of the School District, who with "prudence and due haste"
were to "take all steps necessary to insure that all the resources
and facilities identified by the ARD as required for the discharge
of Petitioner's IEP are on hand and operational when [Sherri's]
placement at [the School District] is effected." The School for
the Blind was directed to assist the School District in developing
community-based educational and related services for Sherri. In no
event was Sherri to be moved from the School for the Blind to a
community placement later than January 1, 1988.
Despite rendering an opinion that Sherri should not continue
to be served at the School for the Blind, and despite finding that
the eligibility criteria claims were not properly before him, the
special education hearing officer noted that if the School for the
Blind were determined to be the least restrictive possible
placement for Sherri, the School for the Blind could not lawfully
deny Sherri a placement there. In other words, it was the special
education hearing officer's opinion that the School for the Blind
could not erect a barrier to Sherri's placement there merely by
altering its eligibility criteria.
The dispute regarding Sherri's educational placement5 and the
5It appears that plaintiffs interpret "educational
placement" under EAHCA to include, for persons with disabilities
as severe as Sherri's, only residential educational services.
Defendants, on the other hand, regard housing and education as
separable in Sherri's case, much as they are for able-bodied

lawfulness of the School for the Blind's eligibility criteria
continued. Nell D. filed suit against TEA, the School for the
Blind, the Commissioner of Education of the TEA, and several other
parties in United States District Court.6 The case was referred to
a United States magistrate judge ["magistrate judge" or "district
court"] for decision, pursuant to 28 U.S.C. § 636(c). A request
for certification of a class action was filed, and was denied by
the magistrate judge. The United States magistrate judge held
hearings but encouraged settlement of the case. Despite the
special education hearing officer's decision that Sherri should be
school-age children. Thus, defendants believe that Sherri's
"educational placement" is a program of services that can be
delivered in any one of a variety of settings, some more
restrictive than others.
An "educational placement" under EAHCA is not a place,
but a program of services from which the child can obtain
some educational benefit; not necessarily the perfect
education. See Lunceford v. District of Columbia Board of
Education, 745 F.2d 1577 (D.C.Cir.1984) (change in feeding
schedule that would occur with transfer of severely
handicapped young adult from private hospital to public
institution insufficient to constitute "change in
educational placement"; although the court refused to find
that a change in residence for a profoundly handicapped
child can never be a change in educational placement, it
noted that any such change would have to result in a
"fundamental change in, or elimination of a basic element of
the educational program" before it constituted a change of
educational placement); Knight v. District of Columbia, 877
F.2d 1025, 1029 (D.C.Cir.1989) (a school district discharges
its duty under EAHCA to deliver an appropriate education "if
it merely places the student in a program "sufficient to
confer some educational benefit," " quoting Rowley, 458 U.S.
at 200, 102 S.Ct. at 3047 (emphasis added)).
6EAHCA allows "[a]ny party aggrieved by the findings and
decision" of the special education hearing officer to file suit
in state or federal court. 20 U.S.C. § 1415(e)(2). Plaintiff
also brought claims under the Fourteenth Amendment, the Family
Education Rights and Privacy Act, 20 U.S.C. § 1232g, the Civil
Rights Act, 42 U.S.C. § 1983, and Section 504 of the
Rehabilitation Act, 29 U.S.C. § 794.

moved to a community residence and mainstreamed into the local
public schools to the fullest extent possible, Sherri remained at
the School for the Blind.
On February 5, 1991, the magistrate judge issued the order
[February Order"] on which this appeal is based. The February
Order provided that Sherri was to be moved from the School for the
Blind to a community residence and was to receive educational
services from the School District. The February Order was at once
decisive and irresolute, due to the combination of an explicit
requirement that Sherri be transferred to a community residence no
later than Jan. 1, 1992 (at age nineteen), with a proviso that she
be moved when services appropriate to her needs are made available
in a community setting, and in no event later than her
twenty-second birthday (Sept. 20, 1994).
Without explanation, the magistrate judge stated that he would
not enter final judgment until after Sherri's transfer had been
accomplished. It is not clear whether the magistrate judge viewed
the other disputed issues (chief among them, the lawfulness of the
School for the Blind's eligibility criteria) as entirely settled
when he issued the February Order.7 In a rather confusing
paragraph, the magistrate judge concluded that because there had
been no less restrictive placements available in the past, the
7In the text of the February Order, the magistrate judge
made a preliminary finding that the School for the Blind's
eligibility criteria were lawful. He had previously denied class
certification.

School for the Blind had constituted the most appropriate placement
for Sherri. However, it was the lack of less restrictive
placements that the magistrate judge appeared bent upon remedying.
On January 13, 1992, the magistrate judge denied the
plaintiff's motion for a stay of the February Order. The
magistrate judge made it clear that he was not wed to any
particular placement option; merely that he believed Sherri should
live in a community setting. The court noted that as plaintiff was
appealing the propriety of Sherri's educational services, nothing
should prevent the parties from finding Sherri alternative
housing.8
Following the parties' failure to arrange for Sherri's
transfer by Jan. 1, 1992, the magistrate judge entered an order on
Jan. 15, 1992, appointing a guardian ad litem for Sherri, despite
the fact that Sherri already had a legally appointed guardian (her
grandmother).9 On the same date, the magistrate judge also issued
8The magistrate implicitly referred to the fact that an
"educational placement" under EAHCA is not a place, but rather a
program of services, which may be delivered in various settings:
"The change envisioned by the Court is not a change in the
plaintiff's educational placement; it is a change in the
plaintiff's housing. Both [the School for the Blind] and [the
School District] have indicated willingness to assist the
plaintiff in "educational" matters during the housing transition
of the plaintiff."
9The magistrate judge explained that, "The Court wishes to
insure that the best interests of the child are preserved among
the various interests presented to the Court in this lawsuit";
implying that he considered none of the parties to be
sufficiently disinterested or independent to make Sherri's best
interests their paramount concern. Apparently, the magistrate
did not hold any hearing or provide any findings of fact to

an order requiring the parties to mediate so that a timely
settlement might be reached. He again noted that one of his chief
concerns was that upon her twenty-second birthday, Sherri might
lose her entitlement to public education and related supports
before facing the difficult transition to community housing:
The Court finds that it is of the utmost importance to Sherri
that she be transitioned to a permanent placement as soon as
possible so that she may receive full educational benefits in
her new home to optimize her chance for success at independent
living. Because Sherri's legal guardian is of an advanced age
... and is not a reasonable long-term housing placement
option, the Court finds that it is in the best interest of
Sherri A.D. to be transitioned to a permanent housing
placement long before her educational benefits expire. The
Court has provided the parties with almost one full year to
locate permanent housing for Sherri, to no avail.
Plaintiff appealed the February Order to this court,
contending that it violates the "stay-put provision" of EAHCA, 20
U.S.C. § 1415(e)(3). Plaintiff has requested in addition that we
take jurisdiction over matters outside the scope of that order but
equally entwined with the merits.
II. JURISDICTION
Ever since the Judiciary Act of 1789, there has been a
federal policy that an appeal may be taken only from a final
decision. Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct.
540, 541, 84 L.Ed. 783 (1940). Generally, a district court's
decision is final only when it "ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment."
Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89
support his appointment of the guardian ad litem.

L.Ed. 911 (1945) (citation omitted). See also Gulfstream Aerospace
Corp. v. Mayacamas Corp., 485 U.S. 271, 275, 108 S.Ct. 1133, 1136,
99 L.Ed.2d 296 (1988). The purpose behind this rule is to avoid
piecemeal appeals, which in turn conserves "judicial energy" and
may help to eliminate delay. Catlin, 324 U.S. at 23334, 65 S.Ct.
at 63334. The rule also "avoid[s] the obstruction of just claims
that would come from permitting the harassment and cost of a
succession of separate appeals from the various rulings to which a
litigation may give rise, from its initiation to entry of
judgment." Cobbledick v. United States, 309 U.S. 323, 325, 60
S.Ct. 540, 541, 84 L.Ed. 783 (1940).
Although plaintiff asserts that the magistrate judge has
nothing further to do but to enter judgment, defendants
characterize the magistrate judge's order as preliminary,10 and note
10Defendant Texas Education Agency ("TEA") explains that the
delay in entry of judgment and the ambiguousness of the February
Order is due to the "preliminary" nature of the order. In
characterizing the order as "preliminary," and in denying that
the order poses any threat of irreparable injury, TEA hopes to
discourage this court from exercising jurisdiction over
plaintiff's appeal. In support of its argument, TEA refers to
the magistrate judge's requirement of periodic reports and a
transition plan which would "include a date of transfer, place of
housing, provider of educational component, all necessary and
required statutory and regulatory approvals, and the signature of
all parties." TEA also notes that the magistrate judge began the
February Order with a requirement that the parties show cause why
the court should not add two parties; moreover, the magistrate
judge's June 27, 1991 order suggests that he did not view his
February Order as final and determinative: "[i]n the court's
opinion, the appeals filed are untimely, no final appealable
order or judgment having been entered". The magistrate
specifically described as "preliminary" only one element of his
February Order--the portion of the order pertaining to the
challenge to the eligibility criteria of the School for the
Blind. Because we find that the February Order amounts to a
denial of an injunction and poses a real, if not certain, threat

that many issues relating to the merits remain undecided. None of
the parties refer to the order as anything other than an
interlocutory order. Because we do not regard the magistrate
judge's delay in entering a final judgment to be a mere formality,
but an important limit to appellate jurisdiction under 28 U.S.C. §
1291,11 we cannot treat the order from which plaintiff appeals "as
if" it were a final judgment.
Because no final judgment has been entered by the magistrate
judge, we can reach the merits of plaintiff's appeal only if it can
be fit squarely into one of the exceptions--judicial or statutory--to
the final judgment rule. We will consider the following
exceptions: collateral orders, certified questions, and
interlocutory orders affecting the availability of injunctive
relief and presenting a threat of serious or irreparable
consequences.12
of irreparable injury (either by causing Sherri's transfer to a
setting in which she cannot be served or in which services are
currently unavailable), the conflicting characterizations of the
order (as preliminary or as nearly final) are of virtually no
moment in our consideration of the matter of Sherri's placement.
They do, however, carry limited weight in our consideration of
appellate jurisdiction over other issues such as the challenge to
the eligibility criteria of the School for the Blind.
1128 U.S.C. § 1291 provides: "The courts of appeals ...
shall have jurisdiction of appeals from all final decisions of
the district courts of the United States ... except where a
direct review may be had in the Supreme Court." See also McLish
v. Roff, 141 U.S. 661, 12 S.Ct. 118, 35 L.Ed. 893 (1891)
(recognizing need for final judgment rule prior to enactment of
statutory basis for same).
12We note that jurisdiction cannot be predicated upon the
purported "practical finality exception," for it is more
chimerical than real. In Gillespie v. United States Steel Corp.,
379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), the Supreme

We do not have jurisdiction over the appeal of the February
Order under the collateral orders exception to the final judgment
rule. The February Order does not "finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whose case is adjudicated." Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 122526,
93 L.Ed. 1528 (1949). See also Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981);
Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57
L.Ed.2d 351 (1978).13 To the contrary, the substance of the
February Order is inextricably enmeshed in the merits (i.e.,
Sherri's placement). Thus, we do not obtain jurisdiction over it
based on the collateral orders exception to the final judgment
rule.
Court did not develop a formal exception to the final judgment
rule; instead, it "applied a practical test in deciding whether
the practical finality requirement was satisfied" on the facts of
the particular case before it. Robert M. v. Benton, 622 F.2d
370, 372 n. 2 (8th Cir.1980). See also Coopers & Lybrand v.
Livesay, 437 U.S. 463, 477 n. 30, 98 S.Ct. 2454, 2462 n. 30, 57
L.Ed.2d 351 (1978).
13The three-pronged test for collateral orders appealable
prior to final judgment that was identified in Coopers & Lybrand
v. Livesay, and repeated in Firestone Tire and Rubber v. Risjord,
is virtually a restatement of the test enunciated in Cohen. See
Firestone Tire and Rubber Co. v. Risjord, 449 U.S. 368, 375, 101
S.Ct. 669, 674, 66 L.Ed.2d 571 (1981) (quoting Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d
351 (1978)) (order "must conclusively determine the disputed
question, resolve an important issue completely separate from the
merits of the action, and be effectively unreviewable on appeal
from a final judgment").

The magistrate judge has not certified that the February
Order involves a "controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate
termination of the litigation," 28 U.S.C. § 1292(b). There is,
however, another statutory exception to the final judgment rule
which is designed to permit appeals to circuit courts from
interlocutory orders of the district courts "granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions, except where direct review may be
had in the Supreme Court ..." 28 U.S.C. § 1292(a)(1). Whether the
injunction is preliminary or permanent is immaterial for purposes
of determining appellate jurisdiction under § 1292(a)(1). Equal
Employment Opportunity Commission v. Kerrville Bus Co., Inc., 925
F.2d 129 (5th Cir.1991).
Plaintiff sought a preliminary injunction and a temporary
restraining order in 1987, in an effort to prevent any change in
Sherri's educational program and placement, i.e., "to maintain the
status quo." The temporary restraining order was denied, but a
district judge postponed consideration of the motion for a
preliminary injunction. Although the February Order might be
interpreted as permitting Sherri's continued placement at the
School for the Blind until an appropriate alternative placement can
be found for her, the order clearly mandates that she be
transferred to "permanent" housing. The plain import of the order
is that Sherri is to be moved not only at some point, but soon.

Thus, the order has the practical effect of denying an injunction
against moving Sherri from the School for the Blind, even if it
does not in explicit terms deny the injunction against "changes in
the status quo" that was requested by plaintiff earlier in the
litigation.
Orders which explicitly grant or deny injunctive relief are
immediately appealable as of right; no additional finding of a
threat of immediate, irreparable injury is required. See Equal
Employment Opportunity Commission v. Kerrville Bus Co., 925 F.2d
129, 13233 (5th Cir.1991); see also Atwood Turnkey Drilling, Inc.
v. Petroleo Brasileiro, 875 F.2d 1174, 1176 (5th Cir.1989). The
February Order does not explicitly grant or deny any injunction,
although its effect is the same.
Those orders which, like the February Order, have the
practical effect of denying an injunction, but do not do so in
explicit terms, are immediately appealable if the order threatens
"serious, perhaps irreparable consequences" and can be effectively
challenged only by immediate appeal. Carson v. American Brands,
Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981)14
14Carson's additional requirement that appellant show an
immediate threat of irreparable injury or serious consequences
only applies to orders which do not explicitly grant, deny or
modify an injunction but which nevertheless have a practical
effect on the availability of injunctive relief. Orders which
explicitly grant, deny or modify an injunction remain appealable
"as of right, right away." Equal Employment Opportunity
Commission v. Kerrville Bus Co., Inc., 925 F.2d 129, 132 (5th
Cir.1991) (citing Atwood Turnkey Drilling, Inc. v. Petroleo
Brasileiro, S.A., 875 F.2d 1174, 1176 (5th Cir.1989), cert.
denied, Petroleo Brasileiro, S.A. v. Atwood Turnkey Drilling,

See also Equal Employment Opportunity Commission v. Kerrville Bus
Co., 925 F.2d 129 (5th Cir.1991). The showing of a threat of
immediate and irreparable harm that is required in cases like
Carson prior to the appellate court's review of the order is a
safeguard against undue widening of the floodgates which currently
keep in proper bounds the § 1292(a)(1) exception to the final
judgment rule. If an order explicitly grants or denies an
injunction, the same concern that animates Carson (the concern not
to expand exceptions to the final judgment rule too far) does not
apply. An explicit grant, denial or modification of an injunction
is simple to recognize and cannot be conjured up by sophistic
counsel where it does not in fact exist. Thus, if an interlocutory
order explicitly affects the availability of injunctive relief, it
Inc., 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990).
Plaintiff argues that in order to review the February
Order, we need not find a threat of irreparable injury, if
we find that the February Order effectively grants or denies
an injunction "affect[ing] predominantly all of the merits
of the case" (emphasis added). Although several other
Circuits appear to accept that argument, see, e.g., I.A.M.
National Pension Fund Benefit Plan A v. Cooper Industries,
Inc., 789 F.2d 21, 24 n. 3 (D.C.Cir.1986), cert. denied,
Cooper Industries, Inc. v. I.A.M. National Pension Fund
Benefit Plan A, 479 U.S. 971, 107 S.Ct. 473, 93 L.Ed.2d 417
(1986); Center for National Security Studies v. CIA, 711
F.2d 409, 41213 (D.C.Cir.1983) (collecting cases); see
also Tokarcik v. Forest Hills School District, 665 F.2d 443,
447 (3d Cir.1981), cert. denied, Scanlon v. Tokarcik, 458
U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982), it does
not appear to be the rule in this Circuit. See Kerrville
Bus Co., 925 F.2d at 132. In any case, because we find that
the February Order does present a threat of irreparable
injury to plaintiff, we need not reach this question.
Still, we note that the February Order does not affect
"predominantly all the merits," because while it addresses
the question of Sherri's placement, it makes only a
preliminary finding as to plaintiffs' challenge to the
School for the Blind's eligibility criteria, and leaves yet
other claims made by plaintiffs wholly unaddressed.

is immediately appealable regardless of whether irreparable injury
is threatened by the order.
Because the February Order does not explicitly deny an
injunction, we must also find, under Carson, that the February
Order not only had the practical effect of denying an injunction
against Sherri's transfer but also presents a threat of serious,
perhaps irreparable consequences which may be effectively addressed
only by an immediate appeal.15 We think it does. By the terms of
the order, Sherri is to be moved prior to entry of final judgment.
Thus, if injury results, it will result prior to the time at which
appeal of a final judgment is possible. If Sherri is moved to a
community residence before services appropriate to her needs and to
which she is entitled under EAHCA are available, her cognitive and
social skills may deteriorate, or her educational progress might be
unduly delayed, meaning she would not obtain the requisite benefit
from public education. See Rowley, 458 U.S. at 18992, 20003, 102
S.Ct. at 304244, 304749 (defining "free appropriate education"
under EAHCA as individualized instruction and supportive services
which confer "some educational benefit" upon the disabled child).
Moreover, such a move would entail emotional upheaval for Sherri,
15Neither delay nor increased cost of litigation alone will
suffice to show irreparable harm. Irreparable harm is "greater
than the harm suffered by any litigant forced to wait until the
termination of the [proceedings] before challenging interlocutory
orders it considers erroneous." Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 37879 n. 13, 101 S.Ct. 669, 67576 n. 13,
66 L.Ed.2d 571 (1981). See also I.A.M. National Pension Fund
Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21, 2425
(D.C.Cir.1986), cert. denied, Cooper Industries, Inc. v. I.A.M.
National Pension Fund Benefit Plan A, 479 U.S. 971, 107 S.Ct.
473, 93 L.Ed.2d 417 (1986).

accustomed as she is to a particular environment, a particular
routine, and caretakers who (for the most part) will not follow her
to her new placement. Sherri has very limited capacity to
comprehend why she is being moved.16
The preliminary injunction hearing was postponed repeatedly
and apparently was never held. However, whether the magistrate
judge had earlier denied plaintiff's specific request for a
preliminary injunction against moving Sherri, or effectively did so
with his February 5, 1991 Order, we have jurisdiction under §
1292(a)(1).
Our inquiry into the matter of jurisdiction is not ended,
however, for we must also analyze its scope. Specifically, we must
decide whether to uphold plaintiff's contention that we have and
should exercise appellate jurisdiction over the denial of class
certification, the finding that the parties were in contempt of the
February Order, the appointment of a guardian ad litem, and the
claim that the School for the Blind's eligibility criteria are
unlawful.
We decline to reach these other claims. Unlike the February
Order, none of these other issues can be construed as granting,
16The mere fact that Sherri may suffer emotional upheaval
due to being transferred does not mean the move to a community
placement would be unjustified. We only note that an improper
move might constitute irreparable injury.

modifying or denying an injunction.17 Moreover, none represents a
threat of irreparable harm if not addressed by us at this juncture.
See, e.g., Northwestern National Insurance Co. of Milwaukee v.
Alberts, 937 F.2d 77, 82 (2d Cir.1991) (threat of irreparable harm
due to an interlocutory order does not exist where party can be
made whole upon resolution of case on merits). Finally, none of
these matters fits into the collateral orders exception to the
final judgment rule.18
Our inability to address the appeals of the denial of class
certification and the preliminary finding as to the eligibility
criteria merits further discussion. The challenge to the
eligibility criteria, on grounds that they are discriminatory or
otherwise unlawful, is the crucial claim plaintiff seeks to make on
behalf of the proposed class.
17An order which "merely limits the scope of the relief that
may ultimately be granted.... [w]hile it may have a significant
effect on the litigation ... is not for that reason converted
into [an injunction]." Gardner v. Westinghouse Broadcasting Co.,
437 U.S. 478, 481, 98 S.Ct. 2451, 2454, 57 L.Ed.2d 364 (1978)
(quoting Morgantown v. Royal Insurance Co., 337 U.S. 254, 258, 69
S.Ct. 1067, 1069, 93 L.Ed. 1347 (1949)).
18To come within the exception to the final judgment rule
for certain "final collateral orders," the order "must
conclusively determine the disputed question, resolve an
important issue completely separate from the merits of the
action, and be effectively unreviewable on appeal from a final
judgment." Firestone Tire and Rubber Co. v. Risjord, 449 U.S.
368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981) (quoting
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454,
2458, 57 L.Ed.2d 351 (1978)). The magistrate judge's preliminary
finding that the eligibility criteria are lawful, even if
separable from the merits, is by definition not conclusive. The
contempt proceedings, the denial of class certification and the
appointment of a guardian ad litem should be reviewable on appeal
from a final judgment.

The order denying class certification in this case does not
have any irreparable effect,19 can be reviewed either by the
magistrate judge prior to entry of final judgment or by an
appellate court thereafter, does not affect the merits of Sherri's
individual claim (i.e., her placement),20 and does not itself
resolve the legal status of plaintiff's claims for injunctive
relief (i.e., that the eligibility criteria not be applied and that
Sherri not be moved from the School for the Blind). Thus, the
order denying class certification is unreviewable by us on
interlocutory appeal. See Gardner v. Westinghouse Broadcasting
Co., 437 U.S. 478, 480, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978)
(plaintiff who brought gender discrimination action on behalf of
self and other women was unable to make interlocutory appeal of
19Plaintiffs argue that the approach of Sherri's
twenty-second birthday makes denial of class certification a
potential death knell to the claims of the class. Presumably
that is because Sherri's individual challenge to the School for
the Blind's eligibility criteria may be, or may soon become,
moot. However, if it is later determined that class
certification was improperly denied, the claims of the class may
continue to be pressed even if Sherri's own claims are moot.
See, e.g., United States Parole Commission v. Geraghty, 445 U.S.
388, 404, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980) (despite
fact that class action was never certified and named plaintiff's
own claims were rendered moot pending appeal, the questions of
class certification and class claims could still be appealed).
20While the claim that the eligibility criteria are
discriminatory is the central claim brought by the class, the
question of the lawfulness of the School for the Blind's
eligibility criteria need not be resolved in order to determine
whether the February Order regarding Sherri's placement was
consistent with EAHCA. The magistrate judge did not rely on the
eligibility criteria in reaching a decision regarding Sherri's
placement. Rather, the magistrate judge decided what placement
would be the least restrictive environment in which appropriate
educational services could be delivered to Sherri. We need not
consider the challenge to the eligibility criteria, therefore, in
order to resolve the question of Sherri's individual placement.

denial of class certification even where "the practical effect of
denial of class certification is ... to refuse a substantial
portion of the injunctive relief requested in the complaint"); see
also Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57
L.Ed.2d 351 (1978) (decertification of class action not appealable
as a matter of right, whether as a collateral order or under any
other exception to final judgment rule).
We do not have jurisdiction to consider the challenge to the
eligibility criteria, for the same reasons we do not have
jurisdiction over the denial of class certification. In addition,
if the merits are construed as going to the question of Sherri's
placement, then while the eligibility criteria might be separable
from the merits (in that Sherri's placement can be resolved without
considering the eligibility criteria), no conclusive judgment on
the criteria has been reached, and hence we do not obtain
jurisdiction over the matter under the collateral orders exception
to the final judgment rule.
III. THE FEBRUARY 5, 1991 PLACEMENT ORDER
A. Power of the Magistrate to Issue the Order
The "stay-put" provision of EAHCA, 20 U.S.C. § 1415(e)(3),
does not tie the hands of the courts.21 In Honig v. Doe, the
2120 U.S.C. § 1415(e)(3) provides:
During the pendency of any proceedings conducted pursuant to
this section, unless the State or local educational agency
and the parents or guardian otherwise agree, the child shall
remain in the then current educational placement of such
child ... until all such proceedings have been completed.

Supreme Court explained that § 1415(e)(3) was designed as a remedy
against "the unilateral exclusion of disabled children by schools,
not courts.... The stay-put provision in no way purports to limit
or preempt the authority conferred on courts by § 1415(e)(2) ...;
indeed, it says nothing whatever about judicial power." 484 U.S.
305, 327, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988) (emphasis in
original; citation omitted). See also Burlington School Committee
v. Massachusetts Department of Education, 471 U.S. 359, 373, 105
S.Ct. 1996, 2004, 85 L.Ed.2d 385 (1985) (the stay-put provision's
purposes include "prevent[ing] school officials from removing a
child from the regular public school classroom over the parents'
objection pending completion of the review proceedings"); Andersen
by Andersen v. District of Columbia, 877 F.2d 1018 (D.C.Cir.1989)
(rejecting claim that the stay-put provision ties the hands of
courts and schools alike until all administrative or judicial
review is completed, and noting that "once a district court has
rendered its decision approving change in placement, that change is
no longer the consequence of a unilateral decision by school
authorities ... once a district court has resolved the issue of
appropriate placement, the child is entitled to an injunction only
outside the stay-put provision, i.e., by establishing the usual
grounds for such relief").
Even if the stay-put provision did apply to the district
courts, however, it is not implicated here, because it is designed
to prevent alteration of a child's "educational placement" during
the pendency of a dispute under EAHCA, not alteration of a child's

residence. In ordering Sherri transferred from the School for the
Blind, the magistrate judge did not alter Sherri's individualized
educational program ("IEP"); merely the location in which her IEP
is to be implemented.22 The magistrate judge specifically noted in
his January 13, 1992 Order that he did not contemplate a change in
Sherri's IEP, merely a change in her housing.
An educational placement, for the purposes of EAHCA, is not
changed unless a fundamental change in, or elimination of, a basic
element of the educational program has occurred. See, e.g.,
Lunceford v. District of Columbia Bd. of Ed., 745 F.2d 1577
(D.C.Cir.1984). Thus, the February Order, by directing that Sherri
be moved during the pendency of the action, but that she continue
to receive appropriate educational services, did not violate EAHCA
and was well within the powers of the magistrate judge.
B. Review of Applicable Law
Under EAHCA, the principle of "mainstreaming" disabled
individuals with able-bodied individuals is well established. See,
e.g., Rowley, 458 U.S. at 20203, 102 S.Ct. at 3049. Even in cases
in which mainstreaming is not a feasible alternative, there is a
statutory preference for serving disabled individuals in the
setting which is least restrictive of their liberty and which is
22There is precious little evidence in the record to support
the argument that Sherri's educational program would necessarily
have to be altered merely because of a change in the location in
which it is provided to her. The mere fact that one location may
be able to provide better services, or services beyond those
required by the IEP, does not mean that delivery of educational
services at another location would be inappropriate.

near the community in which their families live. See, e.g.,
Burlington School Committee v. Massachusetts Department of
Education, 471 U.S. 359, 373, 105 S.Ct. 1996, 2004, 85 L.Ed.2d 385
(1985); Kerkam v. Superintendent, D.C. Public Schools, 931 F.2d
84, 87 (D.C.Cir.1991). The decisions of both the special education
hearing officer and the magistrate judge appear to have been based
upon this understanding of EAHCA and relevant Texas regulations.
While the School for the Blind might be capable of providing
services from which Sherri may obtain "educational benefit" (the
standard for "appropriateness" of free public education under
Rowley ), the School for the Blind is not the least restrictive
environment in which Sherri may receive appropriate educational
services. The capacity of the School for the Blind to provide
educational services to Sherri may in some respects far exceed what
EAHCA requires. However, EAHCA does not mandate that every child
with a disability receive optimal services. Lunceford, 745 F.2d at
1583 ("The EAHCA does not secure the best education money can buy;
it calls upon government, more modestly, to provide an appropriate
education for each child"); Rowley, 458 U.S. at 198201, 102 S.Ct.
at 30463048; Knight v. District of Columbia, 877 F.2d 1025,
102830 (D.C.Cir.1989); Kerkam, 931 F.2d at 87. Instead, EAHCA
requires that "appropriate" educational services be delivered in
the least restrictive environment available, with a preference for
mainstreaming when possible.23 The concern for enhancing the
23See 20 U.S.C. § 1412(5). In fact, the notion of
mainstreaming is helpful in defining what placements are least
restrictive of the disabled child's liberty, because it

disabled child's ability to obtain educational benefit must be
balanced with concerns about limited public resources, the need to
provide basic educational opportunities to disabled and able-bodied
children alike, and with the concern to serve the disabled child in
the environment which is least restrictive of the child's liberty.
In directing Sherri's transfer to a community residence, and
requiring appropriate educational programming to be delivered to
Sherri by her home school district, the February Order tracks the
purposes of EAHCA: to provide a free, appropriate education in the
least restrictive environment. Read in light of the applicable
law, the February Order would mandate transfer of Sherri A.D. from
School for the Blind to a community placement not immediately, but
as soon as housing can be located and appropriate educational
services developed in the local public school system. The
requirement that Sherri be moved no later than Jan. 1, 1992 was a
reasonable limit on the amount of time it should take to obtain
such housing and educational services for Sherri.24 All that was
required of the local public school system was to obtain the
services of a vocational education teacher and to acquire simple
facilities for training Sherri in self-care and simple tasks that
might one day be useful to Sherri in supported employment (e.g.,
encourages the delivery of educational services to both disabled
and able-bodied children in the same environment when feasible.
The notion of the least restrictive environment involves not only
freedom from physical restraint, but the freedom of the child to
associate with his or her family and with able-bodied peers.
24The February 5, 1991 Order allowed the parties nearly one
full year in which to arrange for educational services and
housing for Sherri in the community.

folding laundry).
C. Review of Factual Support for the Order
Having concluded that the magistrate judge applied the
relevant law, all that stands between us and affirmance is to
ascertain whether the magistrate judge's application of the law to
the facts of this case was "clearly erroneous."25 Reviewing the
record before us on appeal, we cannot say that the record contains
insufficient support for the magistrate judge's factual findings.
There is evidence that Sherri can be appropriately served in
the community. A special education hearing officer and an expert
from Sherri's School District agree that Sherri can obtain
educational services in the School District from which she will be
able to obtain educational benefit. The fact that her ability to
25In cases referred by a district judge to a magistrate for
decision with consent of the parties under 28 U.S.C. § 636(c),
the standard of review of findings of fact is the same standard
applied to district judges. In Archambault v. United Computing
Systems, 695 F.2d 551, 551 (11th Cir.1983), the court noted that
where a magistrate serves as special master with consent of the
parties under 28 U.S.C. § 636(b)(2), "[t]he findings of the
special master are entitled to the same deference as those of the
typical factfinder." In the case before us, the parties
consented to trial and decision by a magistrate, under § 636(c),
making the factfinder even more like a district judge than the
special master in Archambault. See also Proctor v. North
Carolina, 830 F.2d 514, 517 (4th Cir.1987) (review of magistrate
judge's fact-finding is governed by "clearly erroneous"
standard); see generally Steven A. Childress and Martha S. Davis
1 Standards of Review 3334 (1986) (discussing standards of
review applicable to findings of magistrates acting in different
capacities and concluding that "whether a magistrate receives
clear error deference or a de novo determination hinges on the
basis of the referral and, more generally ... on "the extent to
which the magistrate approaches the exercise of ultimate judicial
authority." " [citation omitted] ).

obtain benefit from community-based services cannot be known for
certain until Sherri has been given the opportunity is no argument
against giving her that opportunity.
Sherri is twenty now. When she turns twenty-two, her
eligibility for education and residence at the School for the Blind
will terminate. The parties do not contemplate that she would
require institutionalization at some other facility thereafter.
All parties concede, and the special education hearing officer
specifically found, that if Sherri were to remain at the School for
the Blind, her progress over the course of the next two years would
not be significant. As plaintiff herself points out, Sherri has
only made a few months' worth of progress in cognitive age since
she entered the School for the Blind fourteen years ago. If she
would be able to work in a sheltered workshop and live in a
community residence after receiving two more years of free,
appropriate education under her IEP at the School for the Blind, as
plaintiff claims, surely she will be able to do the same with the
education she will receive under the same IEP implemented in her
local school district. Plaintiff agrees that Sherri can and should
eventually live in the community. It would seem that the time is
now.
The magistrate judge's frustration with the parties' delay in
formulating and implementing a transition plan for Sherri is
evident in many of the orders subsequent to February 1991. We
share that frustration. The magistrate judge did not designate any

particular placement for Sherri, but directed the parties to find
appropriate housing and arrange for appropriate educational
services in a community setting. In allowing the parties some
flexibility to develop a transition plan, the magistrate judge did
not intend to provide the parties with unlimited time in which to
effect that plan.
IV. CONCLUSION
Having concluded that the magistrate judge had the power to
order Sherri transferred to a community residence pending
resolution of the litigation, that he correctly applied the
relevant law and that his fact-finding on that issue was not
clearly erroneous, we affirm the February Order. On remand, the
magistrate judge should use all means at his disposal to effect the
immediate location or creation of community-based housing and
services appropriate to Sherri's needs, to which Sherri shall be
transferred. It may be appropriate on remand for additional
testimony to be received to resolve certain issues either disputed
or ambiguous.26
26Additionally, on remand, the magistrate judge should make
written findings supporting his appointment of a guardian ad
litem. Certain allegations contained in the report of the
guardian ad litem, if true, would tend to support the magistrate
judge's decision, and raise ethical concerns regarding the
ability of plaintiff's counsel to advocate simultaneously the
interests of Sherri and the class for which counsel seeks
certification. The allegations also raise questions about
whether the requisite commonality for maintenance of a class
action exists as between Sherri and the rest of the class for
which plaintiffs seek certification. Specifically, the alleged
interference by plaintiff's counsel with Sherri's guardian's
acceptance of a settlement offer with which the guardian ad litem
was also in agreement, is particularly disturbing where
acceptance might foreclose the class action but be in the best

AFFIRMED IN PART AND REMANDED IN PART.

interests of the named plaintiff and consistent with the wishes
of her guardian.