                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOHN OSCAR,                           
               Plaintiff-Appellant,
                                            No. 07-35795
               v.
ALASKA DEPARTMENT OF                         D.C. No.
                                          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
          OSCAR v. ALASKA DEPARTMENT OF EDUCATION        12101


                         COUNSEL

Megan K. Allison and David C. Fleurant, Disability Law Cen-
ter 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 Dis-
abilities Education Act (“IDEA”) and 42 U.S.C. § 1983
against the Alaska Department of Education and Early Devel-
opment (“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 preju-
dice because the administrative complaint was not signed.
The district court awarded attorneys’ fees to DEED as the pre-
vailing party pursuant to 20 U.S.C. § 1415(i)(3)(B)(i)(II), and
this appeal ensued.
12102       OSCAR v. ALASKA DEPARTMENT OF EDUCATION
                          BACKGROUND

   John Oscar is the father of a student with an individualized
education plan (“IEP”) in the Lower Kuskokwim School Dis-
trict. 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 out-
lined three concerns and “request[ed] a full investigation to
resolve this issue.”

   The next day, two DEED employees called Oscar to dis-
cuss his concerns and they memorialized the conversation
with an email summation. The email explained three avenues
for seeking redress, which included contacting the school dis-
trict, 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 com-
plaint. 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 let-
ter 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 let-
  1
   Citations 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 com-
plaint.
          OSCAR v. ALASKA DEPARTMENT OF EDUCATION        12103
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 com-
plaint 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 administra-
tive complaint process and deprived Mr. Oscar of procedural
protections under the IDEA.” Oscar also alleged that Com-
missioner 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. Plain-
    tiff has failed to state a claim upon which relief may
    be granted. Plaintiff failed to submit a signed, writ-
12104       OSCAR v. ALASKA DEPARTMENT OF EDUCATION
      ten administrative complaint; therefore, his submis-
      sion 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 Uni-
fied 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 attor-
neys’ 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 preju-
dice 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 Buck-
  2
   In light of our resolution of the prevailing party issue, we do not reach
the issue of whether Oscar’s complaint was frivolous.
           OSCAR v. ALASKA DEPARTMENT OF EDUCATION          12105
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 relation-
ship 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 author-
ity 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 preju-
dice alters the legal relationship of the parties. The Federal
Circuit addressed this question in RFR Industries, Inc. v. Cen-
tury 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 conclu-
sion 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 dis-
12106     OSCAR v. ALASKA DEPARTMENT OF EDUCATION
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 avail-
able relief in the state court.’ ” Id. Accordingly, we found that
“[t]he dismissal eliminates the federal ADA claim from fur-
ther 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 distin-
guishes Miles from our present case. DEED remains at risk
that Oscar will re-file his IDEA claim in federal court; there-
fore, 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.
