2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/1109NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 2883

_____________ DENIS F

. SHEILS , on behalf of himself and on behalf of M.D.S

. , a minor child ,

Appellant

v. PENNSBU RY SCHOOL DISTRICT

_____________ Appeal from the United States District Court for the Eastern District of Pennsylvania ( E.D. Pa. C iv . No. 2 : 14

- c v - 02736 ) District Judge: H onorable Petrese B. Tucker

______________ Argued October 1, 2014

______________ Before: AMBRO , CHAGARE S , and VANASKIE , Circuit Judges

.

(Opinion Filed: October 23, 2014 ) Denis F. Sheils, Esq. [ARGUED] Kohn, Swift & Graf One South Broad Street Suite 2100 Philadelphia, PA 19107 Pro Se Appellant Thomas C. Warner, Esq. [ARGUED] Jonathan P. Riba, Esq. Sweet, Stevens, Katz & Williams2

331 East Butler Avenue P.O. Box 5069 New Britain, PA 18901 Counsel for Appellee

______________ OPINION

______________ VANASKIE, Circuit Judge

. Denis F. Sheils (“Sheils”) appeals the District Court's order denying his request to stay i mplementation of an Individua lized Education P rogram (“IEP”) and issuance of a Functional Behavior Assessment (“FBA”) developed for his son , M.D.S. , and approved by Appellee Pennsbury School District (the “School District”) and Sheils’s ex

- wife, Harriet Sheils (“Harriet”). Sheils s ee ks to stay implementation of the IEP and issuance of the FBA while he challenges both pursuant to the judicial review provisions of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400, et seq
. 1 Sheils’s request for a stay was sough t under the IDEA ’s “stay put” provision , found at 20 U.S.C. § 1415(j). 2 Because the District Court denied the requested stay without making the findings required by Fed. R. Civ. P. 52(a) (2 ) , we will vacate the District Court’s order and remand this matter for further proceedings. This C ourt’s previously issued stay will

1 On June 24, 2014, we granted Sheils’s request to stay the implementation of both the IEP and the FBA pending the outcome of this appeal, and we also expedited the disposition of this appeal

.

2 Section 1415(j), in pertinent par t, provides that , during the pendency of judicial review of an IEP, “unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then

- current educational placement of the child. . . .”3

remain in effect unti l the District Court issues an order granting or denying Sheils’s request for a stay pursuant to § 1415(j).
I. We write primarily for the parties, who are familiar w ith the facts and procedural history of this case. Accordingly, we set forth only those facts necessary to our analysis. This litigation is part of a contentious child

- custody dispute between Sheils, a licensed attorney, and Harriet . In the briefing fo r this appeal, in which Harriet is not a participant, Sheils spews forth a jeremiad of the disagreements he has had with his ex

wife over the care of not only M.D.S., but also their other two minor children. 3 In this appeal, the parents’ disagreement conc erns the educational needs of their son, M.D.S., and it is that issue alone that we address. There is no dispute that M.D.S. , now 12 years old, has learning and behavioral issues that warrant an IEP under the IDEA. In particular, he has exhibited learnin g disabilities in read ing and listening comprehension and has shown socially inappropriate behaviors. To address these issues, there has been an IEP in place for M.D.S. since kindergarten. M.D.S. commenced his first year of middle school in the fall of 2013 in the School District under an IEP that provided for him to be in regular classes 94% of the time.

3 The parents share le gal custody of their children, but Harriet has primary physical custody. Sheils has made it clear that he is not satisfied with that arrangement. This case, however, is not the appropriate forum for airing grievances pertaining to Sheils’s disagreement w ith the fact that Harriet has primary physical custody of the children. Sheils is admonished to refrain from such diatribes in the fu ture in this case as they are completely irrelevant and highly distasteful.4

Early in that sc hool year, however, his special

- education and language

- arts teachers voiced concerns about M.D.S.’s progress . T esting showed that he was reading at a level markedly below his sixth

- grade class. For example, while M.D.S. was in regular sixt h

grade classes, his reading co mprehension was below the first

- grade level. In addition, he was exhibiting behavioral problems. To address these i ssues, the School District revise d the IEP for M.D.S. to provide specialized instruction outside the normal classroom setting and proposed that a n FBA be conducted

. Harriet agreed to the re vised IEP and FBA, but Sheils objected. As a consequence of Sh eils’s objections, the matter proceeded to a due process hearing before a Special Educa tion Hearing Officer. After five days of hearings, the Hearing Officer issued a written report in which he sustained Sheils ’s objections insofar
as mathematics instruct ion was concerned, but overruled hi s objections with respect to language

- arts instruction (reading and writing) and the FBA. Under the Hearing Officer’s decision, M.D.S. would receive reading and writing instruction “in a resource room environment,” but m athematics instruction “in a co

- taught inclusive regular education classroom with appropriate supplemental aids and services.” 4 (App. at 14.) Dissatisfied with this result, Sheils filed this action in the District Court and immediately petitioned for a preliminary injunction under § 1415(j) of the IDEA

. Specifically, he sought to prevent the S c hool District from implementing the revised IEP

4 The School District represents that M.D.S . would be in a regular education classroom setting 4.3 hours out of a 6,75

- hour school day, or 64% of a normal school day. (Appellee’s Brief at 17, n.15.)5

and conducting the FBA . Along with his complaint, Shei ls filed a motion for interim injunctive relief pursuant to the IDEA’s “ stay put ” provision. If issued, t his type of stay would maintain the “ educational status quo until the disagreement over [M.D.S.’s ] IEP is resolved

. ” M.R. v. Ridley Sch. Dist

. , 744 F.3d 112, 118 (3d Cir. 2014) The District Court
denied She ils’s petition, but did not make any findings of fact or conclusions of law in its written order

. 5 Sheils now appeals that order.
I I

. The District Court had jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(3 )(A). We have appellate jurisdict ion und er 28 U.S.C. § 129 1 (a)(1). The “stay put” provision of the IDEA “ serves ‘ in essence, as an au tomatic preliminary injunct ion

. ’” M.R. , 744 F.3d at 118 ( quoting Drinker by Drinker v. Colonial Sch. Dist. , 78 F.3d 859, 864 (3d Cir. 1996) )

. In consider ing decisions on a preliminary injunction request, “[w] e review the District Court's findings of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed for abuse of discretion.” K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist. , 710

5 The District C ourt’s order read s:

AND NOW , this

___ day of May, 2014, upon consideration of Pla intiff’s Application for Order to Show Cause Re: Entry of Stay Pending Appeal, Preliminary Injunction and Temporary Restraining Order (Do c. 2), Defendant’s Response in O pposition thereto (Doc. 7), and the hearing on the matter held on May 21, 2014 , IT IS H EREBY ORDERED AND DECREED that the Plaintiff’s Application is DENIED

. (App. at 20 .)6

F.3d 99, 105 (3d Cir. 2013) ( citing Sypniewski v. Warren Hills Regional Bd. of Educ. , 307 F.3d 243, 252 (3d Cir. 2002)). Our review of decisions granting or denying preliminary injunctive relief is to be fa cilitate d by Rule 52(a)(2) of the Federal Rules of Civil Procedure , which requires that the District Court make findings of fact and conclusions of law supporting its action. Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co. , 353 F.2d 510, 51 1 (3d Cir. 1965 ). In this case, the District Court did not articulate any findings of fact or conclusions of law. Its single

- sentence order merely referenced the parties’ filings, noted that there was a hearing, and summarily denied the petition. The o rder does not meet Rule 52(a)(2)’s requirements. Under these circumstances, remand is appropriate

. See F.T. C. v. British Oxygen Co. , 529 F.2d 196, 200 (3d Cir. 1976) (where, as here, a reviewing court is unable to determine the grounds for the District C ourt’s action, remand is warranted)

. On remand, the District Court should address the question of whether a single parent’s consent to an IEP is sufficient to enable a school district to implement the IEP notwithstanding the other parent’s objection. Sh eils argues that one parent is able to block implementation of an IEP during the pendency of litigation because § 1415(j) provides that , “ during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agenc y and the parents otherwise agree, the child shall remain in the then

- current educational placement of the child

. . . until all such
p roceedings have been completed .” 20 U.S.C . § 1415 (j) (emphasis added). Sheils contends that use of the plural form of p arent signifies that either parent can invoke the7

“stay put” provision. The School District, on the other hand, argues that the appropriate
interim IEP placement is the one agreed to by the School District and either parent. At oral argument, t he parties suggested that th e child

- custody order may be relevant to resolving this issue, but that order was n ot properly presented to us

. The District Court should resolve th e dispute concerning one parent’s right to invoke the “stay put” provision over the other parent’s objection in the first instance. Further, the District Court must also decide whether the proposed FBA con stitutes part of M.D.S.’s “then

- current educational placement” and is therefore encompassed by
the “ stay put ” provision. M.R. , 744 F.3d a t 118. The School District asserts that the FBA is not part of the student’s “then

- current educational placement,” 20 U.S.C. § 1415(j), and thus is not subject to the “stay put” provision. Sheils takes the co ntrary position. This dispute as well should be resolved in the first instance by the District Court.
I V

. For the foregoing reasons, we will vacate the District Court’s order and remand this matter for further proceedings consistent with this opinion. As noted above, this Court’s stay will remai n intact until the District Court issues an appropriate order as to Sheils’s petition for a preliminary injunction pursuant to the IDEA’s “stay put” provision.