                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0066n.06
                           Filed: January 25, 2006

                                           No. 04-4159

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JACOB WINKELMAN, a minor, by and                  )
through his parents and legal guardians,          )
JEFF and SANDEE WINKELMAN,                        )
                                                  )
       Plaintiffs-Appellants,                     )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
v.                                                )   NORTHERN DISTRICT OF OHIO
                                                  )
PARMA CITY SCHOOL DISTRICT,                       )
                                                  )
       Defendant-Appellee.


       Before: SILER and SUTTON, Circuit Judges; SHARP, District Judge.*


       PER CURIAM. This interlocutory appeal arises from the denial of a motion for a

preliminary injunction regarding the stay-put placement for a child under the Individuals with

Disabilities Education Act (IDEA). See generally 20 U.S.C. § 1400, et seq.; 20 U.S.C. § 1415(j)

(stay-put provision). See also Winkelman v. Parma City Sch. Dist., No. 04-4159, at *2 (6th Cir.

Nov. 4, 2004) (order denying motion to dismiss and motion for injunction pending appeal and

construing the pro se motion for a temporary restraining order in this case as a motion for a

preliminary injunction); Wagner v. Bd. of Educ. of Montogmery County, 335 F.3d 297 (4th Cir.

2003) (treating a request for a change in a child’s stay-put placement as a request for a preliminary



       *
        The Honorable Allen Sharp, United States District Judge for the Northern District of
Indiana, sitting by designation.
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Winkelman, et al. v. Parma City School District

injunction). Because the primary argument raised on appeal was not raised before the district court

in the motion seeking preliminary relief and because the district court did not otherwise abuse its

discretion in denying the motion, we affirm.


                                                  I.


       Jacob Winkelman is an eight-year-old child with autistic spectrum disorder, a condition that

qualifies him for a “free appropriate public education” through an “individualized educational

program” (IEP) under the IDEA. More than four years ago, in September 2001, Jacob’s parents, Jeff

and Sandee Winkelman, met with officials of the Parma City School District and together they

decided that placing Jacob in preschool at the Achievement Center for Children would meet the

IDEA’s requirements and Jacob’s needs. Jacob attended the Achievement Center during the

2001–02 and 2002–03 school years. At that time the Achievement Center operated a preschool

program designed to serve children ages 3 to 6. IHO Interim Order at 1 (Aug. 27, 2003).


       In preparation for the 2003–04 school year, when Jacob would be old enough to transition

from preschool to kindergarten, the Winkelmans met with Parma City School District officials on

June 2, 2003, to discuss the district’s proposed IEP for Jacob. At that meeting, the school district

proposed an IEP that would place Jacob in kindergarten at Pleasant Valley Elementary School.

Dissatisfied with this proposal, which the Winkelmans believed was not “specifically designed to

meet [Jacob’s] special educational needs,” Winkelman Pro Se Br. at 3, the Winkelmans filed a

request for an administrative hearing to challenge the school district’s proposed IEP.



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       At the same time, the parents and school district disagreed about which school should be

designated as Jacob’s “stay-put” placement, which is to say the school that Jacob would attend

during the pendency of the administrative hearing and any subsequent appeals. On August 27, 2003,

Impartial Hearing Officer (IHO) Joy M. Freda issued an “Interim Order” treating the Achievement

Center as Jacob’s “current educational placement” and designating it on an interim basis as his stay-

put placement. IHO Interim Order at 4–5 (Aug. 27, 2003); see also 20 U.S.C. 1415(j) (“[D]uring

the pendency of any proceedings conducted pursuant to this section . . . the child shall remain in the

then-current educational placement of the child.”). Although IHO Freda stated that “at the present

time, services offered at the Achievement Center [ ] would continue to offer value to [Jacob],” she

also recognized that “the Achievement Center will not be addressing ‘kindergarten academics,’ and

it is entirely possible that, in the future — perhaps as soon as five or six months — the parents or

school district may conclude [that] such placement is no longer appropriate.” IHO Interim Order

at 5 (Aug. 27, 2003). If during this brief period of time the parents or school district determined that

the Achievement Center was no longer an appropriate placement for Jacob, IHO Freda urged the

parties to “work collaboratively to fashion a mutually-acceptable compromise for [Jacob’s] benefit.”

Id. at 5–6. Ultimately, Jacob’s parents did not place Jacob in the Achievement Center for the

2003–04 school year. They instead enrolled him at the Monarch School of Bellefaire JCB, a private

school specializing in the education of students with autistic spectrum disorders.


       On February 19, 2004, IHO Freda ruled on the merits of Jacob’s underlying IDEA claim.

In a 56-page decision she found that the school district’s proposed IEP at Pleasant Valley “offer[ed]



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an appropriate educational program and placement [for Jacob]” and that “the [Winkelmans] [we]re

not entitled to reimbursement for tuition and transportation costs in association with their private

placement of [Jacob] at the Monarch School.” IHO Op. at 32 (Feb. 19, 2004). The Winkelmans

administratively appealed this decision.


       On June 2, 2004, a State Level Review Officer affirmed IHO Freda’s decision. Acting pro

se, the Winkelmans then filed a lawsuit in federal district court, challenging these administrative

decisions.


       On August 23, 2004, the Winkelmans moved for a preliminary injunction in the district court

designating the Monarch School as Jacob’s stay-put placement. Winkelman Mot. for Inj. at 1. The

school district responded by indicating that Pleasant Valley was the appropriate stay-put placement.

See Parma Mem. in Opp. to Mot. for Inj. at 4, 11. On August 24, 2004, the district court denied the

motion. D. Ct. Order at 4 (Aug. 24, 2004). Noting that the Winkelmans had unilaterally removed

Jacob from the Achievement Center, the court concluded that Jacob’s stay-put placement should be

Pleasant Valley. Id. Following the denial of a motion for reconsideration, the Winkelmans filed this

interlocutory appeal.


       On June 2, 2005, while the Winkelmans’ interlocutory appeal was pending in this court, the

district court ruled on the merits of Jacob’s underlying IDEA claim. The court agreed with the IHO

and the State Level Review Officer, determining that the school district’s proposed plan did not

violate the IDEA. See D. Ct. Op. at 20 (June 2, 2005). The Winkelmans appealed that decision to



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Winkelman, et al. v. Parma City School District

this court, again acting pro se. On November 4, 2005, a different panel of judges from this court

issued an order dismissing that appeal unless counsel was retained in the case within 30 days.

Winkelman v. Parma City Sch. Dist., No. 05-3886 (6th Cir. Nov. 4, 2005); see Cavanaugh v.

Cardinal Local Sch. Dist., 409 F.3d 753, 756 (6th Cir. 2005) (stating that non-lawyer parents may

not represent a minor child in an IDEA action in federal court). The Winkelmans then sought, and

received from the United States Supreme Court, a stay of the November 4, 2005 order. That stay

remains in effect “pending the timely filing and disposition by [the Supreme] Court of a petition for

a writ of certiorari,” Winkelman v. Parma City Sch. Dist., No. 05A506 (U.S. Dec. 12, 2005), on the

issue of whether parents may represent their children pro se in federal court actions filed under the

IDEA.


                                                 II.


        Before addressing whether the district court erred in denying the Winkelmans’ request for

a preliminary injunction regarding Jacob’s stay-put placement, we pause to emphasize that the

Supreme Court’s stay of this court’s November 4, 2005 order does not prohibit us from resolving

this separate appeal. The November 4th order deals with the merits appeal and with whether the

IDEA compels Jacob’s parents to obtain counsel before proceeding with that appeal. In this case,

by comparison, the Winkelmans seek interim relief regarding Jacob’s stay-put placement, and they

have hired counsel to handle this appeal. After the Supreme Court issued its November 4th stay

order, we nonetheless asked the Winkelmans whether they wished to move forward with this appeal.

Through counsel, the Winkelmans not only gave us permission to resolve this independent appeal

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Winkelman, et al. v. Parma City School District

but also indicated that they would prefer us to do so. At oral argument on December 21, 2005, the

Winkelmans again expressed their preference that we move forward with this appeal and the school

district indicated that it did not object.


        The standard for obtaining a preliminary injunction is well established. We look to four

factors “in determining the appropriateness of a preliminary injunction: (1) whether the plaintiffs

are likely to succeed on the merits, (2) whether the plaintiffs will suffer irreparable injury in the

absence of an injunction, (3) whether granting the injunction will cause substantial harm to others,

and (4) whether the issuance of the injunction is in the public interest.” Michigan State v. Miller,

103 F.3d 1240, 1249 (6th Cir. 1997). On appeal from the denial of a preliminary injunction, we ask

whether the district court abused its discretion in denying the motion. Id.


        The Winkelmans argue that the district court should have ordered the school district to treat

the Achievement Center as Jacob’s stay-put placement and, when that school became unavailable,

should have changed his stay-put placement to the Monarch School. The problem with this

argument is that the Winkelmans never presented it to the district court in seeking a preliminary

injunction. At issue before the district court was whether (in the words of the Winkelmans) “Jacob’s

current placement at the Monarch School should be designated as the stay-put placement” during

the pendency of his appeals because (in the words of the Winkelmans) “if this case w[ere] ripe for

summary judgment today, the Monarch School would be designated as Jacob’s stay-put placement.”

Winkelman Mot. for Inj. at 5–6. In their motion the Winkelmans explained that they “gave notice

on or about August 12, 2003 . . . [that they were] plac[ing] Jacob at the Monarch School” because

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“of the failure [of] Parma to follow the mandates of the IDEA and develop an IEP that would

provide educational benefit to Jacob.” Id. at 3. They then argued that the Monarch School should

be the stay-put placement because “the IHO and [State Level Review Officer] both misinterpreted

and misapplied the IDEA during the administrative proceedings.” Id. at 18 n.2. Nowhere in that

motion, however, did the Winkelmans argue that the Achievement Center was the appropriate stay-

put placement for Jacob and that it became unavailable because Jacob was denied admission—the

position they now take on appeal. See Winkelman Letter Br. Because this argument was not made

before the district court and because the district court was asked only whether the Pleasant Valley

Elementary School of the Parma City School District or the private Monarch School should be

treated as Jacob’s stay-put placement during the resolution of the merits of the IDEA claim, it is

waived. See Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005) (“Our function is

to review the case presented to the district court, rather than a better case fashioned after a district

court’s unfavorable order.”) (internal quotation omitted). In resolving an emergency motion for

preliminary relief, a district court cannot fairly be accused of abusing its discretion in rejecting an

argument that was never made. Because the Winkelmans make no other tenable arguments for

reversing the district court’s decision and because (as they acknowledged at oral argument) they

cannot tenably claim at this point that they have a likelihood of success on the merits (in view of the

three merits decisions against them), we conclude that the district court’s preliminary-injunction

ruling did not amount to an abuse of discretion. Of course, the Winkelmans’ other appeal awaits

resolution by another panel of this court. If the Winkelmans prevail in that appeal and establish that

the proposed IEP at Pleasant Valley is inadequate under the IDEA, then that ruling may well provide

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the family considerable relief. See, e.g., Knable v. Bexley City Sch. Dist., 238 F.3d 755, 763 (6th

Cir. 2001) (noting that parents may be entitled to reimbursement for the costs of a child’s education

incurred during the review of an IDEA claim if the reviewing court finds that the school district’s

proposed public placement violated the IDEA and that the private school placement was appropriate

under the IDEA).


                                                III.


       For these reasons, we affirm the district court’s denial of the Winkelmans’ motion for a

preliminary injunction.




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