Denis Sheils v. Pennsbury School District , 590 F. App'x 159 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-2883
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DENIS F. SHEILS, on behalf of himself
and on behalf of M.D.S., a minor child,
Appellant
v.
PENNSBURY SCHOOL DISTRICT
_____________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 2:14-cv-02736)
District Judge: Honorable Petrese B. Tucker
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Argued October 1, 2014
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Before: AMBRO, CHAGARES, 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 & Williams
331 East Butler Avenue
P.O. Box 5069
New Britain, PA 18901
Counsel for Appellee
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OPINION
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VANASKIE, Circuit Judge.
Denis F. Sheils (“Sheils”) appeals the District Court's order denying his request to
stay implementation of an Individualized Education Program (“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 seeks 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 sought 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 Court’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 part, 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. . . .”
2
remain in effect until 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 with 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 for 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 concerns 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 learning
disabilities in reading 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 legal 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 with the fact that Harriet has primary physical custody of the children.
Sheils is admonished to refrain from such diatribes in the future in this case as they are
completely irrelevant and highly distasteful.
3
Early in that school year, however, his special-education and language-arts teachers
voiced concerns about M.D.S.’s progress. Testing showed that he was reading at a level
markedly below his sixth-grade class. For example, while M.D.S. was in regular sixth-
grade classes, his reading comprehension was below the first-grade level. In addition, he
was exhibiting behavioral problems. To address these issues, the School District revised
the IEP for M.D.S. to provide specialized instruction outside the normal classroom
setting and proposed that an FBA be conducted. Harriet agreed to the revised IEP and
FBA, but Sheils objected.
As a consequence of Sheils’s objections, the matter proceeded to a due process
hearing before a Special Education Hearing Officer. After five days of hearings, the
Hearing Officer issued a written report in which he sustained Sheils’s objections insofar
as mathematics instruction was concerned, but overruled his 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 mathematics 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 School 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.)
4
and conducting the FBA. Along with his complaint, Sheils filed a motion for interim
injunctive relief pursuant to the IDEA’s “stay put” provision. If issued, this 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 Sheils’s petition, but did not make any findings of fact or conclusions of law in its
written order.5 Sheils now appeals that order.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331 and 20 U.S.C. §
1415(i)(3)(A). We have appellate jurisdiction under 28 U.S.C. § 1291(a)(1).
The “stay put” provision of the IDEA “serves ‘in essence, as an automatic
preliminary injunction.’” M.R., 744 F.3d at 118 (quoting Drinker by Drinker v. Colonial
Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996)). In considering 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 Court’s order reads:
AND NOW, this ___ day of May, 2014, upon consideration
of Plaintiff’s Application for Order to Show Cause Re: Entry
of Stay Pending Appeal, Preliminary Injunction and
Temporary Restraining Order (Doc. 2), Defendant’s
Response in Opposition thereto (Doc. 7), and the hearing on
the matter held on May 21, 2014, IT IS HEREBY
ORDERED AND DECREED that the Plaintiff’s
Application is DENIED.
(App. at 20.)
5
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 facilitated 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, 511 (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 order 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 Court’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. Sheils 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 agency and the parents otherwise agree, the
child shall remain in the then-current educational placement of the child . . . until all such
proceedings have been completed.” 20 U.S.C. § 1415(j) (emphasis added). Sheils
contends that use of the plural form of parent signifies that either parent can invoke the
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“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, the parties suggested that the child-custody order may be relevant to
resolving this issue, but that order was not properly presented to us. The District Court
should resolve the 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 constitutes
part of M.D.S.’s “then-current educational placement” and is therefore encompassed by
the “stay put” provision. M.R., 744 F.3d at 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 contrary position. This
dispute as well should be resolved in the first instance by the District Court.
IV.
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 remain 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.
7