FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN OSCAR, 

Plaintiff-Appellant, No. 07-35795

v. D.C. No.

ALASKA DEPARTMENT OF  CV-07-00066-RRB

EDUCATION AND EARLY OPINION DEVELOPMENT,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

August 7, 2008—Anchorage, Alaska

Filed September 3, 2008

Before: Dorothy W. Nelson, A. Wallace Tashima, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge D. W. Nelson

12099
COUNSEL

Megan K. Allison and David C. Fleurant, Disability Law Center of Alaska, Anchorage, Alaska, for the plaintiff-appellant.

Stephen C. Slotnick, Assistant Attorney General, Juneau,

Alaska, for the defendant-appellee. 

OPINION

D.W. NELSON, Senior Circuit Judge: 

John Oscar filed a lawsuit under the Individuals with Disabilities Education Act (“IDEA”) and 42 U.S.C. § 1983

against the Alaska Department of Education and Early Development (“DEED”). The lawsuit alleged that DEED violated

his rights under the IDEA when it refused to accept his

administrative complaint. DEED filed a successful Rule

12(b)(6) motion and the lawsuit was dismissed without prejudice because the administrative complaint was not signed.

The district court awarded attorneys’ fees to DEED as the prevailing party pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(II), and

this appeal ensued. 

OSCAR v. ALASKA DEPARTMENT OF EDUCATION 12101
BACKGROUND

John Oscar is the father of a student with an individualized

education plan (“IEP”) in the Lower Kuskokwim School District. On April 5, 2007, Oscar sent an email to the Disability

Law Center, Parents Inc., and DEED that expressed “grave

disappointment that the Lower Kuskokwim School District

(LKSD) ha[d] violated” his daughter’s IEP. The letter outlined three concerns and “request[ed] a full investigation to

resolve this issue.” 

The next day, two DEED employees called Oscar to discuss his concerns and they memorialized the conversation

with an email summation. The email explained three avenues

for seeking redress, which included contacting the school district, requesting mediation, and mailing a signed complaint to

a specified address. Oscar responded by email, stating that he

would “contact if further assistance is needed.” 

On April 13, 2007, an attorney from the Disability Law

Center called DEED to discuss the status of Oscar’s complaint. The written summation of the conversation included

the three options explained to Oscar. The summation also

acknowledged that “DEED does not consider the April 5 letter from Mr. Oscar a proper request for complaint as it is not

signed and does not properly set out the issue in dispute.” 

On April 16, 2007, another attorney from the Disability

Law Center mailed a letter to DEED requesting that DEED

commence an investigation of the alleged IEP violation within

sixty days of Oscar’s original letter. This correspondence

paraphrased all of the requirements of Alaska Admin. Code

tit. 4, § 52.500 (2002)1 and analyzed how Oscar’s original let1Citations within this opinion reference the 2002 printing of the code,

which was operational at the time the lawsuit was filed. Section 52.500

was amended while this case was pending. See Alaska Admin. Code tit.

4, § 52.500 (2007). The 2007 amendments require the department to

inform the complainant of the procedural deficiencies of his or her complaint. 

12102 OSCAR v. ALASKA DEPARTMENT OF EDUCATION
ter “appears to meet the complaint requirements.” It stated

that “Mr. Oscar has submitted his concerns in writing, dated

the letter and included a typed signature.” 

The Commissioner of DEED responded to this letter by

stating that he “disagree[d] with [the] characterization of

events.” He further indicated that he declined to discuss the

situation with the Disability Law Center because its letter did

not contain a declaration that it was representing Oscar. The

Commissioner’s letter closed by inviting the Disability Law

Center to contact DEED “for help in properly filing a complaint on Mr. Oscar’s behalf, if that is what you wish to

accomplish.” 

On April 30, 2007, Oscar filed a lawsuit against DEED and

the Commissioner. Oscar alleged that DEED had violated “its

duty under the IDEA to administrator [sic] a state administrative complaint process and deprived Mr. Oscar of procedural

protections under the IDEA.” Oscar also alleged that Commissioner Sampson had violated Mr. Oscar’s civil rights

under the same theory. 

DEED filed a motion to dismiss, arguing that Oscar had

failed to state a claim upon which relief could be granted

because § 52.500 requires that complaints be signed, and Mr.

Oscar’s complaint was not signed. On June 20, 2007, Oscar

filed a motion for voluntary dismissal, explaining that his

claim was now moot as he had filed a signed complaint with

DEED. DEED opposed the voluntary dismissal, and requested

that the court sign DEED’s proposed order dismissing the

case with prejudice. 

On June 28, 2007, the district court granted DEED’s

motion to dismiss, stating:

The State’s motion to dismiss is GRANTED. Plaintiff has failed to state a claim upon which relief may

be granted. Plaintiff failed to submit a signed, writOSCAR v. ALASKA DEPARTMENT OF EDUCATION 12103
ten administrative complaint; therefore, his submission was insufficient as a matter of law. The

Department correctly concluded that Mr. Oscar had

not filed a complaint, and that he was required to

submit a signed, written administrative complaint. 

One week later, the court issued the judgment. The judgment

dismissed the action without prejudice and awarded $6,465 in

attorneys’ fees to DEED. 

STANDARD OF REVIEW

“The district court’s award of attorney’s fees is reviewed

for an abuse of discretion.” Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 861 (9th Cir. 2004).

“The district court’s underlying factual determinations are

reviewed for clear error and its legal analysis relevant to the

fee determination is reviewed de novo.” Id. 

DISCUSSION

[1] Under the IDEA, a court may award reasonable attorneys’ fees “to a prevailing party who is a State educational

agency or local educational agency against the attorney of a

parent who files a complaint or subsequent cause of action

that is frivolous . . . .” 20 U.S.C. § 1415(i)(3)(B)(i)(II). Thus,

the threshold question is whether the dismissal without prejudice conferred prevailing party status upon DEED under the

IDEA. 

[2] Our analysis begins with the definition of “prevailing

party” set forth by the Supreme Court in Buckhannon Board

& Care Home, Inc. v. West Virginia Department of Health &

Human Res., 532 U.S. 598, 600 (2001). P.N. v. Seattle Sch.

Dist. No. 1, 474 F.3d 1165, 1167 (9th Cir. 2007).2 In Buck2

In light of our resolution of the prevailing party issue, we do not reach

the issue of whether Oscar’s complaint was frivolous. 

12104 OSCAR v. ALASKA DEPARTMENT OF EDUCATION
hannon, the Supreme Court noted that prevailing party status

requires that a party “received a judgment on the merits, or

obtained a court-ordered consent decree.” Buckhannon, 532

U.S. at 605 (internal citations omitted). Additionally, such

relief must “create the material alteration of the legal relationship of the parties necessary to permit an award of attorney’s

fees.” Id. at 604 (internal quotation marks omitted). 

[3] First, we consider whether a dismissal without prejudice

constitutes a judgment on the merits. We have repeatedly held

that “a dismissal without prejudice is not a decision on the

merits” for the purposes of res judicata. Weinberg v. Whatcom

County, 241 F.3d 746, 750 (9th Cir. 2001); see also Scholastic

Entm’t, Inc. v. Fox Entm’t Group, 336 F.3d 982, 989 n.4 (9th

Cir. 2003). Although these cases are distinguishable because

they address claim preclusion rather than attorneys’ fees, they

provide persuasive authority. We also find persuasive authority in Star Northwest Inc. v. City of Kenmore, which held that

“a defendant is not a ‘prevailing party’ with regard to claims

dismissed without prejudice.” Nos. 06-35801 & 06-36029,

2008 WL 2230036, at *3 (9th Cir. May 28, 2008). Each of

these decisions counsels against a conclusion that dismissal

without prejudice confers success on the merits. 

[4] Second, we consider whether a dismissal without prejudice alters the legal relationship of the parties. The Federal

Circuit addressed this question in RFR Industries, Inc. v. Century Steps, Inc., 477 F.3d 1348, 1353 (Fed. Cir. 2007). There

the court concluded that “[a] plaintiff’s voluntary dismissal

without prejudice . . . does not constitute a change in the legal

relationship of the parties because the plaintiff is free to refile

its action.” Id. The Seventh Circuit reached a similar conclusion in Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d

1073, 1076 (7th Cir. 1987). There, the court concluded that

“[a] dismissal without prejudice under Rule 41(a)(1)(i) does

not decide the case on the merits” because a plaintiff may

refile and “[t]he defendant remains at risk.” Id. Although

these cases involve voluntary rather than involuntary disOSCAR v. ALASKA DEPARTMENT OF EDUCATION 12105
missal without prejudice, the risk of re-filing underlying their

reasoning applies in both procedural postures. Thus we are

persuaded that dismissal without prejudice does not alter the

legal relationship of the parties because the defendant remains

subject to the risk of re-filing. 

We distinguish this case from Miles v. California, 320 F.3d

986, 989 (9th Cir. 2003). In Miles, “the underlying case was

dismissed ‘without prejudice to Miles’ right to seek any available relief in the state court.’ ” Id. Accordingly, we found that

“[t]he dismissal eliminates the federal ADA claim from further proceedings in federal court and thus has changed the

legal relationship of Miles with respect to the State.” Id. This

bar against further proceedings in federal court clearly distinguishes Miles from our present case. DEED remains at risk

that Oscar will re-file his IDEA claim in federal court; therefore, the dismissal without prejudice did not alter the legal

relationship of the parties. 

[5] For the foregoing reasons, we hold that the dismissal

without prejudice did not confer prevailing party status upon

the defendant. Without prevailing party status, the defendant

is ineligible for an award of attorneys’ fees under 20 U.S.C.

§ 1415(i)(3)(B)(i)(II). Therefore we reverse the district court

and vacate the award of attorneys’ fees. 

REVERSED AND VACATED.

12106 OSCAR v. ALASKA DEPARTMENT OF EDUCATION