                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 14-4466
                                     _____________

                                J.F.; J.F., on behalf of J.F.,
                                                          Appellants

                                             v.

                   BYRAM TOWNSHIP BOARD OF EDUCATION

                                   ________________

                       Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 2-14-cv-05156)
                       District Judge: Honorable Faith S. Hochberg
                                    ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 8, 2015


       Before: McKEE, Chief Judge, AMBRO, and HARDIMAN, Circuit Judges


                            (Opinion filed: October 29, 2015)
                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
AMBRO, Circuit Judge

                                             I.

       This appeal presents a question about the scope of the “stay-put” provision of the

Individuals with Disabilities Education Act (“IDEA”). J.F., a fourteen-year-old boy with

learning disabilities, relocated with his family from New Jersey’s Westwood Regional

School District (“Westwood”) to the Byram Township School District (“Byram”). He

contends on appeal that the stay-put provision requires Byram to pay for him to remain at

a private school outside of Byram during the pendency of a due process petition that he is

pressing. We disagree. Byram’s obligation under the IDEA is to provide J.F. with

services comparable to what he received from Westwood until it either implements the

program designed for J.F. by Westwood or designs its own program. The District Court

concluded that Byram has met its obligation, and we will affirm.

                                            II.

       Under the IDEA, protected students receive Individualized Education Programs

(“IEPs”) consistent with their needs. See 20 U.S.C. §§ 1412(a)(4), 1414(d). At the time

this dispute arose, the last IEP designed for J.F. was created by Westwood in May 2014

and placed J.F. at the Craig School, a private school outside of Westwood, for the 2014–

2015 school year. After the creation of the IEP but prior to the start of the 2014–2015

school year, J.F. and his parents relocated from Westwood to Byram. In June 2014, J.F.’s

parents registered him with Byram. After reviewing J.F.’s IEP, Byram told J.F.’s parents

that it could implement the program in-district. J.F.’s parents attempted instead to have

                                             2
Byram fund J.F.’s placement at the Craig School. To that end, the parents sought

mediation in July 2014 from the New Jersey Commissioner of Education. This request

was converted into a due process petition. In connection with these proceedings, J.F.’s

parents invoked the stay-put provision of the IDEA and requested an injunction requiring

Byram to fund J.F.’s placement at the Craig School for the duration of the case. An

administrative law judge (“ALJ”) denied the motion, and the District Court upheld the

ALJ’s determination. This timely appeal ensued.1

                                             III.

       The IDEA’s stay-put provision, 20 U.S.C. § 1415(j), provides that during the

pendency of a due process petition, unless there is an agreement otherwise, “the child

shall remain in the then-current educational placement . . . .” J.F. argues that the Craig




1
  We have jurisdiction over the appeal under 28 U.S.C. § 1291. We exercise plenary
review of the District Court’s legal conclusions and review factual findings for clear
error. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 266 (3d Cir. 2014). Where, as is
the case here, the District Court was reviewing an ALJ’s opinion, we apply a modified de
novo standard that gives “due weight” to the ALJ’s factual findings, which we consider to
be “prima facie correct,” as part of our clear error review. Id. (internal quotation marks
omitted). J.F. argues that this deference to the ALJ’s findings only exists when the ALJ
has heard live testimony. This is incorrect. Although we give “special weight” to an
ALJ’s credibility determinations from live testimony, we apply the modified de novo
standard to all factual findings made by the ALJ. Shore Reg’l High Sch. Bd. of Educ. v.
P.S., 381 F.3d 194, 199 (3d Cir. 2004). Finally, because the stay-put provision serves as
an automatic preliminary injunction, we review for abuse of discretion the District
Court’s decision to deny stay-put relief. See M.R. v. Ridley Sch. Dist., 744 F.3d 112, 118
(3d Cir. 2014); K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d
Cir. 2013).



                                              3
School is his “then-current educational placement” because the only IEP in place at the

time of the due process petition provided for his enrollment there.

       If J.F. had not voluntarily relocated from Westwood to Byram, this case would

present a closer question. On the one hand, we have said that the “dispositive factor” in

determining the then-current placement is the IEP “actually functioning when the ‘stay-

put’ is invoked.” Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir. 1996) (internal

quotation marks omitted). In Drinker, we determined that the school that created the

functioning IEP, rather than the school to which the district sought to transfer the student,

was the then-current placement. Id. This favors J.F. On the other hand, we have also held

that the stay-put provision does not prevent schools from making changes that are

unlikely to “affect in some significant way the child’s learning experience.” DeLeon v.

Susquehanna Cmty. Sch. Dist., 747 F.2d 149, 153 (3d Cir. 1984). Because Byram

intended to implement J.F.’s IEP, it is not clear whether the change would have a

significant effect on J.F.’s learning experience.

       However, this is a very different case than either Drinker or DeLeon because both

of those cases involved changes initiated by the school district. By contrast, J.F.’s parents

unilaterally relocated from Westwood to Byram. In these circumstances, the purpose of

the stay-put provision, which is to maintain the status quo in situations where the school

district acts unilaterally, is not implicated. See, e.g., Honig v. Doe, 484 U.S. 305, 323

(1988) (observing that, in adopting the stay-put provision, Congress “very much meant to

strip schools of the unilateral authority they had traditionally employed to exclude

disabled students, particularly emotionally disturbed students, from school”) (emphasis in

                                              4
original); Ms. S. ex rel. G. v. Vashon Island Sch. Dist., 337 F.3d 1115, 1133 (9th Cir.

2003) (“Although the ‘stay-put’ provision is meant to preserve the status quo, we

recognize that when a student transfers educational jurisdictions, the status quo no longer

exists.”). In Ms. S., the Ninth Circuit, confronting the situation we have here, stated,

       We hold that when a dispute arises under the IDEA involving a transfer
       student, and there is disagreement between the parent and student’s new school
       district about the most appropriate educational placement, the new district will
       satisfy the IDEA if it implements the student’s last agreed-upon IEP; but if it is not
       possible for the new district to implement in full the student’s last agreed-upon
       IEP, the new district must adopt a plan that approximates the student’s old IEP as
       closely as possible. The plan thus adopted will serve the student until the dispute
       between parent and school district is resolved by agreement or by administrative
       hearing with due process.

337 F.3d at 1134.

       We agree with this approach, except we conclude that the relevant test for a school

district’s compliance is found not in the wording of the Ms. S. decision but instead in a

provision that Congress added to the IDEA the year after Ms. S. See 20 U.S.C.

§ 1414(d)(2)(C)(i)(I) (“In the case of a child with a disability who transfers school

districts within the same academic year, who enrolls in a new school, and who had an IEP

that was in effect in the same State, the local educational agency shall provide such child

with a free appropriate public education, including services comparable to those

described in the previously held IEP, in consultation with the parents until such time as

the local educational agency adopts the previously held IEP or develops, adopts, and

implements a new IEP that is consistent with Federal and State law.”).2


2
 The Ninth Circuit’s test is similar, but not identical, to § 1414(d)(2)(C)(i)(I) and was
based on regulatory guidance that predated the codification. Additionally, although the
                                              5
       Although the IDEA does not, by its plain terms, discuss whether the stay-put

provision imposes requirements above and beyond § 1414(d)(2)(C)(i)(I), we have

previously held, in the context of interstate transfers, that unilateral relocations by parents

can override the provision. See Michael C. v. Radnor Twp. Sch. Dist., 202 F.3d 642, 651

(3d Cir. 2000) (“However, where a parent unilaterally removes a child from an existing

placement determined in accordance with state procedures, and puts the child in a

different placement that was not assigned through proper state procedures, the protections

of the stay-put provision are inoperative until the state or local educational authorities and

the parents agree on a new placement.”) (emphasis in original).

       In Michael C., we held that the procedures set forth in a memorandum from the

Office of Special Education Programs governing interstate transfers fixed a school

district’s obligations and superseded the stay-put provision even though the memorandum

did not specifically state that the procedures overrode § 1415(j). Id. at 648–50. Although

Michael C. had its roots in interstate comity concerns not present in intrastate moves, id.

at 651 n.7, the key point for our purposes is that we held the stay-put provision yields to

other procedures governing transfers. Congress explicitly provides those procedures for

intrastate transfers in § 1414(d)(2)(C)(i)(I). We therefore hold that, because J.F.’s parents




transfer here took place between school years, we still apply the test in
§ 1414(d)(2)(C)(i)(I) because the transfer post-dated the creation of the IEP for the new
school year. The situation therefore resembles a mid-year transfer.

                                              6
unilaterally relocated him from Westwood to Byram, the stay-put provision is inoperative

and Byram meets its obligation by complying with § 1414(d)(2)(C)(i)(I).3

                                             IV.

       The question remains whether Byram has met its obligation under

§ 1414(d)(2)(C)(i)(I). The ALJ and the District Court both found that Byram offered

services comparable to those provided for in the Westwood IEP. See JA 7–8, 198. J.F.

disputes this conclusion but does not raise any new arguments on appeal, and we find no

clear error. Of course, the requirements of § 1414(d)(2)(C)(i)(I) extend beyond the initial

provision of comparable services and require the implementation of the existing IEP or

the creation of a new one. J.F. maintains that this has not occurred. However, both the

ALJ and the District Court found that J.F.’s parents refused to cooperate with Byram over

any placement other than the Craig School. See JA 3 n.1, 198. We find no clear error of

fact. As a result, we cannot say under these circumstances that Byram failed to meet its

obligation, and the District Court did not abuse its discretion in declining to grant an

injunction requiring placement at the Craig School.

       For these reasons, we affirm.

3
  We note that under our holding Byram does have the authority to determine J.F.’s
placement pending the resolution of the dispute. But this is only triggered by J.F.’s
parents’ unilateral decision to relocate. The “trade-off”—requiring compliance with
§ 1414(d)(2)(C)(i)(I) but not mandating placement at the student’s former school—of our
approach is “considered necessary in those circumstances where a child chooses to move
to a new school district.” James Rapp, Education Law, § 10C.10[2][c][ii] (Matthew
Bender & Co. 2015). See also id. (“Accordingly, while the new district is required to
provide services comparable to those described in the previously held IEP, the IDEA
does not compel allowing a student to continue at the student’s current brick-and-mortar
placement.”) (internal quotation marks omitted).

                                              7
