UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HEATHER GAMBLE, a minor, by her
parents and next friends; RON
GAMBLE; ARLENE GAMBLE,
Plaintiffs-Appellants,

v.                                                                  No. 95-2247

MARYLAND STATE DEPARTMENT OF
EDUCATION; NANCY S. GRASMICK,
(Officially) Superintendent,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-93-1347-PJM)

Argued: May 8, 1996

Decided: July 22, 1996

Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Francisco Lopez, Jr., BOGIN & EIG, P.C., Washington,
D.C., for Appellant. Jo Ann Grozuczak Goedert, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL, Baltimore,
Maryland, for Appellee. ON BRIEF: Michael J. Eig, Matthew B.
Bogin, BOGIN & EIG, P.C., Washington, D.C., for Appellant.
J. Joseph Curran, Jr., Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Heather Gamble, a handicapped minor, brought this action by her
parents, Ron and Arlene Gamble, under the Individuals with Disabili-
ties Education Act, 20 U.S.C. §§ 1400 et . seq. ("IDEA"), to recover
attorneys fees and costs incurred in pursuing educational funding.

Heather Gamble, a 15-year old with a serious emotional distur-
bance, is disabled as defined by the IDEA. She has received special
education services since the fourth grade and was placed in the
Regional Institute for Children and Adolescents ("RICA") when she
was eleven.

On June 9, 1992, members of the Montgomery County Public
Schools' Admission, Review and Dismissal Committee held a team
meeting to review Heather's educational program at which Heather's
parents indicated that they felt unable to continue to care for Heather
on her weekend visits. The team agreed to help identify additional
resources for Heather and to refer the matter to the Montgomery
County Local Coordinating Council ("LCC") for funding.1
_________________________________________________________________
1 As part of its implementation of the IDEA, Maryland has established
Local and State Coordinating Councils to oversee funding of services for
disabled children who require residential placements. Md. Ann. Code art.
49D, §§ 13-19 (1994).

                    2
On August 20, 1992, Dr. Joan Donahue, Heather's primary thera-
pist at RICA, completed an individual treatment plan for Heather and
recommended that Heather be placed in a therapeutic foster home on
weekends. The Montgomery County LCC met on September 9,
accepted Dr. Donahue's recommendation, and, because funding for
such services is not available through established programs, autho-
rized her to prepare an application for a "flexible funding" grant
which it then submitted to the Governor's Office of Children, Youth
and Families' State Coordinating Council ("SCC").

In early December 1992, Dr. Donahue received a copy of a letter
from the SCC that indicated her "flexible funding" application had
been turned down because it did not assert, as required, that Heather
was "at risk of an out-of-state placement." In attempting to gather the
information necessary to resubmit the application, Dr. Donahue real-
ized that the Montgomery County LCC would have to meet to estab-
lish that Heather was at risk of out-of-state placement. At its February
3 meeting, the LCC discussed the matter and documented the risk in
its minutes, and Dr. Donahue then incorporated those minutes into her
revised application which was submitted to the SCC on February 9,
1993.

The Gambles, too, received a copy of the SCC letter turning down
the "flexible funding" application. On receipt of the letter, they
retained counsel, and on January 25, 1993, requested an administra-
tive hearing to review the SCC's decision to deny Heather's applica-
tion. The hearing was scheduled for Friday, February 19.

Reviewing Heather's revised application in early February 1993,
SCC member Richard Gamble2 determined that it appeared to meet
the SCC's funding criteria and would most likely be approved at the
SCC's February 23 session. He telephoned Gambles' counsel to dis-
_________________________________________________________________
2 Richard Gamble (no relation to the plaintiffs) serves as the chief of
the Maryland State Department of Education's Non-public Schools
Branch of the Division of Special Education. His responsibilities at
MSDE include coordination of MSDE's special education administrative
hearing process. In addition, he is the MSDE's representative to the SCC
and in that capacity, routinely conducts a preliminary evaluation of "flex-
ible funding" applications.

                    3
cuss the matter with him, and subsequently sent Gambles' counsel a
letter in which he wrote,

          Based on my initial review of the materials, it appears that
          [Heather's application] is approvable. However, the full
          committee will not be in session until Tuesday, February 23,
          1993 at which time a final decision will be rendered. Based
          upon our conversation of February 17, 1993 I trust that this
          will alleviate the need for the hearing which is scheduled
          Friday, February 19, 1993. If you are in agreement, please
          advise Laurie Bennett, Esquire and request a postponement.

The Gambles subsequently withdrew their request for a hearing,
and the SCC approved Heather's revised application at its February
23 meeting.

Thereafter, the Gambles requested that the MSDE reimburse them
for their attorneys fees incurred in pursuing the hearing. When their
request was refused, the Gambles brought this action against the
MSDE and Nancy Grasmick in her official capacity as Superintendent
of the MSDE to recover $6,119.12 in attorneys fees and costs, alleg-
ing that they qualified as a prevailing party under the IDEA's fee pro-
vision, 20 U.S.C. § 1415(e)(4)(B). The parties filed cross-motions for
summary judgment, and the district court entered judgment in favor
of the defendants on the ground that the Gambles were not prevailing
parties within the meaning of the IDEA. This appeal followed.

Section 1415(e)(4)(B) of Title 20 permits a district court "in its dis-
cretion" to "award reasonable attorneys' fees . . . to the parents or
guardian of a child or youth with a disability who is the prevailing
party" in "any action or proceeding brought under this subsection."
(Emphasis added). The term "`prevailing party' connotes the same
general meaning under § 1415(e)(4)(B) and 42 U.S.C. § 1988,"
Combs v. School Bd. of Rockingham County, 15 F.3d 357, 360 (4th
Cir. 1994), and permits plaintiffs to recover attorneys fees "if they
succeed on any significant issue in litigation which achieves some of
the benefit the parties sought in bringing suit," Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d
275, 278-79 (1st Cir. 1978)). In order to be a prevailing party under
§ 1988, a plaintiff "must obtain an enforceable judgment against the

                    4
defendant from whom fees are sought, or comparable relief through
a consent decree or settlement." Farrar v. Hobby, 506 U.S. 103, 111
(1992). Accord S-1 v. Board of Educ. of North Carolina, 21 F.3d 49,
51 (4th Cir.) (en banc) (per curiam) (holding that post-judgment
changes in defendants' conduct will not create prevailing party status
under § 1988 unless formalized by "an enforceable judgment, consent
decree, or settlement"), cert. denied , 115 S.Ct. 205 (1994).

The Gambles argue that Richard Gamble's letter "must be viewed
objectively as an offer to approve the [requested] services at the Feb-
ruary 23, 1993, SCC meeting if the hearing was postponed." The
Gambles assert that their subsequent reliance --"giving up their right
to a timely hearing" -- constituted acceptance of and consideration
for Richard Gamble's offer and consequently created a settlement
agreement between the Gambles and the SCC. We disagree.

Even when read in the light most favorable to the plaintiffs, Rich-
ard Gamble's letter does not promise that the SCC would approve
Heather's application if the Gambles postponed their hearing and is
therefore not an offer of settlement. Rather, Richard Gamble merely
indicated that based on his "initial review," it "appear[ed]" that Heath-
er's application was "approvable," but added that a "final decision"
could not be rendered until "the full committee" met on February 23.
(Emphasis added). Moreover, Richard Gamble did not seek to have
the Gambles withdraw their request for a hearing, but rather indicated
only that they might wish to "postpone[ ]" the hearing in light of the
scheduled SCC meeting.

Unconstrained by any obligation to Richard Gamble or the SCC,
the Gambles withdrew their request for a hearing, apparently satisfied
with Richard Gamble's observations regarding the likely resolution of
Heather's application. The Gambles' withdrawal of their hearing
request was voluntary and unilateral and cannot now be reconstructed
as acceptance of or consideration for Richard Gamble's alleged settle-
ment offer.

In the absence of a settlement agreement, we need not reach the
issue of Richard Gamble's authority to enter into such an agreement

                     5
on behalf of the SCC. Accordingly, the judgment of the district court
is

AFFIRMED.

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