UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDSEY LAMBEAU, a minor; JOSETTE
MOHLER, guardian and next friend
of Lindsey Lambeau,
Plaintiffs-Appellants,
                                                                       No. 96-1345
v.

ARLINGTON COUNTY SCHOOL BOARD;
ARTHUR JOSLING,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-95-1614-A)

Argued: May 6, 1997

Decided: May 29, 1997

Before RUSSELL and HALL, Circuit Judges, and
JOSEPH F. ANDERSON, JR., United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jane Elizabeth Schroeder, Gerard Sale Rugel, Herndon,
Virginia, for Appellants. Carol Winfield McCoskrie, Assistant County
Attorney, Arlington, Virginia, for Appellees. ON BRIEF: Barbara S.
Drake, County Attorney, Arlington, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Lindsey Lambeau is a fourteen-year old deaf student residing in
Arlington County, Virginia. Pursuant to the Individuals with Disabili-
ties Education Act ("IDEA"), she is entitled to receive a "free appro-
priate public education"1 consisting of "special education and related
services."2 The IDEA requires that schools establish an individualized
educational program ("IEP") for each disabled child, review it annu-
ally with the child's parents or guardians, and revise it when
appropriate.3 The Arlington County School Board held an IEP team
meeting in July, 1994 and recommended Lambeau be placed in the
Kenmore Middle School. Lambeau's grandmother, Josette Mohler, is
her legal guardian. Mrs. Mohler and her husband, Richard Mohler,
did not believe the Kenmore Middle School could provide the neces-
sary special services and refused to accept the IEP.

After Lambeau failed to appear for classes at the beginning of the
school year in September, the School Board requested a due process
hearing to determine the appropriateness of the recommended place-
ment. The due process hearing was held in two parts, on October 25,
1994 and November 30, 1994, before a Virginia state hearing officer.
At the October 25 hearing the Mohlers were unrepresented, but they
subsequently hired an attorney.

The School Board claims it first became aware the Mohlers would
accept a broad range of alternatives to the recommended placement
at the November 30 hearing. The Mohlers insist they had previously
identified the Clarke School, a residential school for the deaf in Mas-
sachusetts, as a suitable facility. In any event, upon completion of Mr.
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1 20 U.S.C.A. § 1412(1) (West Supp. 1997).
2 20 U.S.C.A. § 1401(a)(18) (West 1990).
3 20 U.S.C.A. § 1414(a)(5) (West Supp. 1997).

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Mohler's testimony at the November 30 hearing, the School Board
agreed to consider sending Lambeau to the Clarke School. The due
process hearing was suspended.

On December 10, 1994, the hearing officer issued an order stating
that "upon resolution of the parties's disagreement through execution
of the new IEP, Arlington County Schools [sic] request for a due pro-
cess hearing will be deemed withdrawn and this matter settled." The
Mohlers and the School Board subsequently signed a new IEP formal-
izing Lambeau's placement at the Clarke School.

Almost a year later, the Mohlers4 filed an action in federal district
court seeking attorneys' fees.5 The School Board filed a Motion to
Dismiss Or, in the Alternative, for Summary Judgment. The district
court declined to hear oral argument and issued an order granting
summary judgment to the School Board. The Mohlers appeal.

Attorneys' fees may be awarded under the IDEA, at the court's dis-
cretion, only to a prevailing party.6 The term "prevailing party" has
"the same general meaning under § 1415(e)(4)(B) and 42 U.S.C.
§ 1988, and cases interpreting both sections apply the same principles
to determine a plaintiff's entitlement to attorneys' fees."7 In order to
be a prevailing party under § 1988, a "plaintiff must obtain an
enforceable judgment against the defendant from whom fees are
sought, or comparable relief through a consent decree or settlement."8

In S-1 and S-2 v. State Board of Education, this court rejected the
idea that a party can establish it is a prevailing party because the law-
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4 The plaintiffs in this action are Lindsey Lambeau, a minor by her
guardian and next friend, Josette Mohler, and Josette Mohler. For ease
of reference, they are collectively referred to as the Mohlers.
5 20 U.S.C.A. § 1415(e)(4) (West 1990 & Supp. 1997). See Combs v.
School Board, 15 F.3d 357, 359 n.10 (4th Cir. 1994) (party can bring
independent action solely to recover fees incurred in administrative hear-
ing) (citations omitted).
6 20 U.S.C.A. § 1415(e)(4)(B) (West Supp. 1997).
7 Combs, 15 F.3d at 360.

8 Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citations omitted).

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suit operated as a catalyst to change the other party's behavior.9 As
part of our decision, we adopted Judge Wilkinson's dissenting opin-
ion in the original case.10 Judge Wilkinson specifically found that a
gratuitous change in conduct is insufficient.11 Instead, the success
achieved by a prevailing party must be "buttressed by a court's
authority or required by a rule of law."12

Our rejection of the "catalyst theory" eviscerates the Mohlers'
claim. The district court held that the Mohlers failed to obtain an
enforceable judgment, consent decree, or settlement. We agree.
Although the dismissal of the School Board's due process hearing
was predicated upon the execution of a new IEP, the hearing officer's
order made no determination as to the appropriateness of the original
IEP and created no enforceable obligations on the part of the School
Board. Therefore, the Mohlers are not a prevailing party within the
meaning of § 1415(e)(4)(B) and are ineligible for attorneys' fees.

For the foregoing reasons, the judgment of the district court is
affirmed.

AFFIRMED
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9 21 F.3d 49, 51 (4th Cir. 1994) (en banc).
10 Id.
11 S-1 and S-2 v. State Board of Educ., 6 F.3d 160, 171 (4th Cir. 1994)
(Wilkinson, J., dissenting).
12 Id. at 170.

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