UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE BOARD OF EDUCATION OF

HARFORD COUNTY, a Body Corporate

and Politic of the State of

Maryland,

Plaintiff-Appellee,

v.

SUSAN THOMAS; COLIN HINSON, a

minor,

Defendants-Appellants.

No. 99-1407

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF MARYLAND;

MARYLAND COALITION FOR INCLUSIVE

EDUCATION; MARYLAND DISABILITY

LAW CENTER; MARYLAND

ASSOCIATION OF BOARDS OF

EDUCATION; NATIONAL SCHOOL

BOARDS ASSOCIATION,

Amici Curiae.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-97-3793-AMD)

Argued: January 25, 2000

Decided: February 23, 2000

Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit

Judge, and J. Frederick MOTZ, Chief United States District Judge

for the District of Maryland, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Wayne Darryl Steedman, CALLEGARY & STEEDMAN, P.A., Baltimore, Maryland, for Appellants. Patrick Preston Spicer, PATRICK

P. SPICER, P.A., Bel Air, Maryland, for Appellee. ON BRIEF:

Selene Almazan-Altobelli, Patricia Cox Waldman, MARYLAND

COALITION FOR INCLUSIVE EDUCATION, Hanover, Maryland,

for Amici Curiae ACLU, et al. Eric B. Schwartz, Deputy Executive

Director, MARYLAND ASSOCIATION OF BOARDS OF EDUCATION, Annapolis, Maryland; Julie K. Underwood, General Counsel,

NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria, Virginia, for Amici Curiae Maryland Association, et al.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This is an appeal from an order denying attorney fees sought by

Susan Thomas, the mother of a minor child, under the Individuals

With Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(i)(3)(B)

(1997). Because Thomas was not a "prevailing party," we affirm the

order of the District Court.

The procedural posture of this case is different from that of the

ordinary IDEA action. Thomas and the Board of Education of Harford County had a dispute as to whether Thomas should be reimbursed for the costs of private education her son Colin had received

during the 1996-97 school year. Thomas' claim for tuition reimbursement for that year was denied by the Maryland Office of Administrative Hearings, and that decision was affirmed upon Thomas' appeal

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to the Circuit Court for Harford County. While that claim was being

decided, the Board, during an appropriately convened Admission,

Review and Dismissal ("ARD") Committee meeting, requested that

Colin be reevaluated so that his Individualized Education Program

("IEP") for the 1997-98 school year could be developed. Thomas

stated at the ARD meeting that certain of Colin's evaluations had

recently been completed, and she would consider whether she would

obtain copies to provide to the Board.

Thereafter, Thomas refused to provide the evaluations to the Board

despite repeated requests that she do so. Faced with her lack of cooperation, the Board filed a request with the Office of Administrative

Hearings seeking an order that would require Thomas to consent and

make Colin available for educational and psychological evaluations.

Thomas moved to dismiss the Board's request for a hearing on the

ground that there is no authority under federal or state law and regulations to require the evaluations sought by the Board. An administrative law judge granted Thomas' motion, and the Board filed an appeal

to the United States District Court.

The district court granted a motion to dismiss filed by Thomas,

finding that it lacked subject matter jurisdiction to consider the

Board's appeal since the Board was not a "party aggrieved" "with

respect to" a complaint filed under 20 U.S.C.§ 1415.1 The Board filed

a motion to alter or amend that decision. While that motion was sub

curia, it came to light that Colin was no longer attending the private

school in which he had been enrolled because he had violated school

policy and that he was receiving home schooling. In a status report

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1 During oral argument on the motion to dismiss, the district court

expressed concern that the Board might be abusing its authority by pursuing litigation against a parent who would not cooperate in having her

child tested and evaluated. An alternative perspective is that the Board

was simply (1) trying to protect itself from a claim that it had not developed an adequate IEP, thus subjecting itself to the cost of private tuition,

and (2) attempting to meet its statutory and regulatory duty to provide an

appropriate education for the minor child. We need not reach the question of which view is more sound, just as we need not and do not decide

whether the Board was authorized by law to seek Thomas' consent for

further evaluation of Colin.

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she filed with the court, Thomas confirmed these facts. She also

advised that she would not seek reimbursement for tuition at the

Phelps School for the 1997-98 school year, that Colin would not

return to the Harford County school system, and that he should no

longer be considered a Board student. In response to that report, the

court issued an order denying the Board's motion to alter or amend

judgment on the ground that the case had become moot. Thomas then

filed her motion for attorney fees.

In order to recover attorney fees under IDEA the person seeking

fees must be a "prevailing party." 20 U.S.C.§ 1415(i)(3)(B); see also

Combs v. School Bd. Of Rockingham County, 15 F.3d 357, 360 (4th

Cir. 1994). Here, it may appear at first blush that Thomas was a prevailing party since she was a defendant and succeeded in having the

case dismissed. However, although the district court initially ruled

that Thomas was correct in contending that the Board's appeal was

lacking in merit since it sought unauthorized relief, that decision was

the subject of a motion to alter or amend by the Board. The district

court never ruled upon the merits of that motion but, instead, found

that the case had become moot by virtue of the facts that Colin no longer was attending Phelps and that Thomas affirmatively disavowed

any claim for reimbursement for the 1997-98 school year tuition.2

Under these circumstances it is clear that Thomas has not prevailed

on the merits and that it was her own voluntary action that resulted

in dismissal of the case. The district court's denial of her claim for

attorney fees was, therefore, correct.

AFFIRMED

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2 Thomas now argues that the district court was incorrect in finding the

action moot. However, Thomas never made that argument below, and

she did not appeal the district court's order denying the Board's motion

to alter or amend on the ground of mootness. Thus, the propriety of the

mootness ruling is not before us.

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