David Peery v. City of Miami

Case: 14-13287 Date Filed: 11/10/2015 Page: 1 of 16

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-13287
________________________

D.C. Docket No. 1:88-cv-02406-FAM

MICHAEL POTTINGER, et al.,

Plaintiffs,

DAVID PEERY,

Plaintiff - Appellant,

versus

CITY OF MIAMI,

Defendant - Appellee.
________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(November 10, 2015)

Before JORDAN and JULIE CARNES, Circuit Judges, and GOLDBERG, ∗ Judge.

JORDAN, Circuit Judge:

∗
Honorable Richard W. Goldberg, Judge of the United States Court of International Trade,
sitting by designation.
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In the hierarchy of law, language is king. Words matter in constitutions,

treaties, statutes, rules, cases, and contracts. And, as seen in this case, they matter

in civil rights settlement agreements which, once judicially approved, become

consent decrees.

David Peery, on behalf of a class, asks us to award his counsel attorneys’

fees for opposing modifications proposed by the City of Miami to such an

agreement. We decline to do so because the parties’ agreement limited future

attorneys’ fees to enforcement proceedings. Given that modification proceedings

do not trigger an award of attorneys’ fees under the agreement, we affirm the

district court’s denial of fees.

I

This case has a prolonged history. We summarize only what is necessary to

provide context for our analysis.

More than 25 years ago, Michael A. Pottinger, as representative of a class of

homeless persons, filed a lawsuit against the City of Miami under 42 U.S.C. §

1983, alleging that the City’s police department had “a custom, practice and policy

of arresting, harassing and otherwise interfering with homeless people for engaging

in basic activities of daily life . . . in the public places where they are forced to

live.” Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.D. Fla. 1992). Mr.

Pottinger sought an injunction against the City to prohibit its police from arresting

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homeless persons who engaged in “life-sustaining conduct” in public and from

seizing and destroying their property. See id. The district court found the City

liable and granted Mr. Pottinger’s request for injunctive relief. See id. at 1584

(detailing the specific relief granted).

The City appealed, challenging the basis and scope of the injunction. In

December of 1994, following oral argument, we remanded the case to allow the

district court to “issue appropriate clarifying language to guide the [C]ity in its

determination of the scope of its duties under the injunction, and [to] consider

whether its injunction should be modified in light of . . . events [that transpired

subsequent to its order granting the injunction].” Pottinger v. City of Miami, 40

F.3d 1155, 1157 (11th Cir. 1994). On remand, the district court conducted an

evidentiary hearing and ruled that the injunction would remain in effect because

the circumstances on the ground had not changed significantly. See D.E. 360 at

11.

Once again the City appealed. We heard oral argument in January of 1996,

and instructed the parties to try to settle their dispute. See Pottinger v. City of

Miami, 76 F.3d 1154 (11th Cir. 1996). After negotiating for nearly two years, the

parties entered into a settlement agreement which the district court subsequently

approved. See D.E. 397 (joint motion to approve settlement agreement); D.E. 398

(final order approving settlement agreement, retaining jurisdiction, and dismissing

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the case). The district court’s approval of the parties’ agreement functioned as the

equivalent of the entry of a consent decree. See Smalbein ex rel. Estate of

Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir. 2003) (“A formal

consent decree is unnecessary because the . . . explicit retention of jurisdiction over

the terms of the settlement [is] the ‘functional equivalent of an entry of a consent

decree.’”) (citation omitted).1

As part of their settlement, the parties agreed that the lawsuit and then-

pending appeals would be dismissed “without costs and attorneys[’] fees (except

such attorneys[’] fees as are specifically provided for [in the agreement])[.]” D.E.

464-1 at 2. Paragraph 25 of the agreement sets forth the parties’ resolution of

attorneys’ fees:

[T]he City shall pay to the Plaintiffs’ attorneys the sum of $900,000 . .
. as and for attorneys[’] fees and costs, . . . as a part of the
comprehensive settlement to be adopted through the implementation
of this Settlement Agreement. Additionally, said payment is made to
conclude all claims for attorneys[’] fees in the underlying litigation,
including pending appeals, and in regard to all other matters
connected with this Settlement Agreement, except enforcement
proceedings, should such become necessary after non-binding
mediation as provided below.

Id. at 13 (emphasis added).

1
We therefore refer to the document approved by the district court interchangeably as the
settlement agreement or consent decree, and draw upon cases dealing with both settlement
agreements and consent decrees. See, e.g., Waters v. Int’l Precious Metals Corp., 237 F.3d
1273, 1276 (11th Cir. 2001) (citing consent decree case in appeal involving interpretation of
settlement agreement approved by district court).

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Like paragraph 25, paragraph 25a of the agreement, entitled

“Enforcement/Mediation,” requires the parties to submit to non-binding mediation

prior to initiating an action to enforce the settlement agreement:

Prior to any party seeking court enforcement against any other party
to this Settlement Agreement, the parties shall attempt to informally
mediate a dispute in a non-binding mediation. . . . This requirement
to mediate prior to seeking court enforcement shall not prevent a party
from seeking immediate court enforcement if it clearly appears from
specific facts shown by aff[i]davit that immediate and irreparable
injury, loss or damage will result to the aggrieved party before the
aggrieved party and the other party can conduct mediation[.]

Id. at 13–14 (emphasis added).

Paragraph 30, entitled “Modification,” states that the settlement agreement

“may be modified by written agreement of the parties, or upon a showing of a

significant change in circumstances warranting revision of the Agreement in a way

suitably tailored to the change of circumstances, but in either event, only after

approval by the Court.” Id. at 14. Paragraph 30 does not provide for the award of

fees in modification proceedings.

II

In October of 2000, the parties filed a joint motion to modify the settlement

agreement. See D.E. 458. The agreement had established a “Start Off Fund” in

order to compensate qualified class members. See D.E. 464-1 at 8. The payments

were to be made within two years, see id. at 13, but they started later than

expected, and the parties asked the district court to modify the agreement to allow
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payments to continue until the fund was exhausted. See D.E. 458 at 2. The district

court did as the parties requested. See D.E. 459. No one sought attorneys’ fees for

the work performed during the 2000 modification process.

A

Over a decade later, in September of 2013, the City invoked paragraph 30 of

the settlement agreement and filed a “Motion for Limited Modification.” See D.E.

464. According to the City, there had been “vast improvements in programs and

services for the homeless,” but those improvements did not ameliorate problems

among two subgroups of the homeless population—“the chronically homeless and

sexual predators.” Id. at 4. From the City’s perspective, modifications to the

agreement were necessary “so [the] needs of these [sub]groups and the public at

large [could] be met.” Id. The City stated that it was “not seeking an Order to

have the entire Agreement set aside.” Id.

The City grouped its proposed modifications into three major categories: the

chronically homeless; the law enforcement protocol as it pertained to shelters; and

sexual predators. See D.E. 464 at 18. First, arguing that they were “treatment

resistant,” the City proposed exempting the chronically homeless (defined by the

City as those “who refuse[ ] services on three separate occasions within a 189-day

period,” with “multiple refusals in a 24-hour period” counting only as a single

refusal) from the definition of homeless persons. Second, the City wanted to

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change the definition of an “available shelter” to a facility which could

accommodate the homeless for a minimum of 24 hours (as opposed to the 48 hours

set forth in the agreement) and which had mats (instead of beds) for the homeless

to sleep on. The City also wished to expand the territorial boundaries of available

shelters and to count facilities as shelters even if they imposed involuntary

substance abuse or mental health treatment. Third, the City sought to exclude

sexual predators from the class of homeless persons under the agreement. Fourth,

the City requested that police officers be allowed to arrest homeless persons for

“life-sustaining conduct” misdemeanors that endangered the health, safety, and

welfare of such persons or the public, regardless of shelter availability. Fifth, the

City recommended reducing the number of activities constituting “life-sustaining

conduct” for which an arrest was prohibited unless a shelter was available, offered,

and refused.

Mr. Peery, representing the class of plaintiffs, filed a response opposing the

motion, arguing that, in effect, the City was attempting to terminate the settlement

agreement as to the “chronically homeless” and registered sex offenders. See D.E.

477 at 2. Mr. Peery also maintained that the City failed to make out a prima facie

case for the requested modifications. See, e.g., id. at 3, 33.

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B

In October of 2013, the district court held a hearing on the City’s motion for

modification and suggested that the parties mediate their dispute. See D.E. 508 at

45–51. The district court appointed a mediator, and two months later the parties

filed a joint motion to approve the so-called 2014 addendum to the original

settlement agreement. The district court granted the parties’ motion. See D.E. 525

(joint motion); D.E. 544 (order).

In the 2014 addendum approved by the district court, the parties agreed to

some of the modifications proposed by the City. The major changes were that

persons who were registered sex offenders or sexual predators under certain

Florida statutes were no longer afforded some of the protections provided by the

original settlement agreement; a facility was now considered a shelter if it could

accommodate the homeless for a minimum of 24 hours and had mats at least three

inches thick for the homeless to sleep on; starting a fire in a park no longer

constituted “life-sustaining conduct;” and arrests could be now be made for “life-

sustaining conduct” misdemeanors after a warning even if a shelter was available,

but only if the conduct involved “imminent threat of physical injury.” See D.E.

525-1 at 2-5. Some of the City’s requested modifications, such as those relating to

the chronically homeless, were not agreed to by the parties and did not become part

of the 2014 addendum. See id. at 1-2.

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Significantly, the 2014 addendum did not change the attorneys’ fees

language in paragraph 25 of the original settlement agreement. Nor did it alter

paragraphs 25a (“Enforcement/Mediation”) or 30 (“Modification”) of that

agreement. The 2014 addendum did, however, include a new paragraph 25b,

which recognizes the fluidity of the homeless situation in Miami, and allows the

parties to “mediate further modifications” to the settlement agreement and the 2014

addendum. See D.E. 525-1 at 8. Paragraph 25b provides that if future issues “are

not resolved in mediation, either party may invoke the court’s jurisdiction . . . to

seek further modifications” of the settlement agreement. Id.

C

Following the district court’s approval of the 2014 addendum, Mr. Peery, as

the class representative, moved for $476,094.55 in attorneys’ fees for the work

performed by counsel during the modification process. See D.E. 553 at 2. The

district court denied Mr. Peery’s motion, ruling that paragraph 25 of the settlement

agreement permits attorneys’ fees for enforcing the agreement, but not for

opposing modifications to the agreement. See D.E. 557 at 2–3. The district court

also found that Mr. Peery was not the prevailing party as to the City’s motion for

modification because paragraph 25 precluded such a finding and because Mr.

Peery “settled short of a [c]ourt ruling on the [City’s] motion.” Id. at 3. Mr. Peery

now appeals the denial of fees.

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III

We exercise plenary review in interpreting a settlement agreement which has

become the functional equivalent of a consent decree through judicial approval.

See Waters, 237 F.3d at 1277; Turner v. Orr, 759 F.2d 817, 821 (11th Cir. 1985).

In cases governed by federal law, settlement agreements and consent decrees are

interpreted according to “principles of contract law.” Waters, 237 F.3d at 1277

(settlement agreements); Jacksonville Branch, NAACP v. Duval Cty. Sch. Bd., 978

F.2d 1574, 1578 (11th Cir. 1992) (consent decrees). Agreements are construed to

effectuate the intent of the parties, and such intent “is derived from the objective

meaning of the words used.” Feaz v. Wells Fargo Bank, N.A., 745 F.3d 1098,

1104 (11th Cir. 2014) (applying federal law to HUD standard-form covenant). Cf.

Kimbell Foods, Inc. v. Republic Nat’l Bank of Dallas, 557 F.2d 491, 496 (5th Cir.

1977) (applying Texas law: “The language of the contract, unless ambiguous,

represents the intention of the parties.”), aff’d sub nom., United States v. Kimbell

Foods, Inc., 440 U.S. 715 (1979).

A

In civil rights cases brought pursuant to 42 U.S.C. § 1983, the award of

attorneys’ fees is governed by 42 U.S.C. § 1988. Generally, a plaintiff who

prevails is entitled to an award of reasonable attorneys’ fees “‘unless special

circumstances would render such an award unjust.’” Crowder v. Hous. Auth. of

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City of Atlanta, 908 F.2d 843, 848 (11th Cir. 1990) (quoting Hensley v. Eckerhart,

461 U.S. 424, 429 (1983)).

A consent decree constitutes a “material alteration of the legal relationship

of the parties necessary to permit an award of attorneys’ fees.” Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604

(2001) (internal quotation marks and citation omitted). So does a settlement

agreement which the district court retains jurisdiction to enforce. See Am.

Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002). Other

circuits have therefore held that under § 1988 attorneys’ fees can be awarded for

defending, enforcing, opposing the modification of, or monitoring compliance with

an existing consent decree. See, e.g., Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608,

625-27 (6th Cir. 2013); Balla v. Idaho, 677 F.3d 910, 918 (9th Cir. 2012); Johnson

v. City of Tulsa, 489 F.3d 1089, 1109 (10th Cir. 2007).

There is, however, an important caveat to these general principles. The

Supreme Court held in Evans v. Jeff D., 475 U.S. 717, 736 (1986), that § 1988

permits settlement agreements conditioned on the waiver of attorneys’ fees, and we

have since explained that one of the situations which might constitute a special

circumstance justifying the denial of fees is “where the plaintiff through a

settlement or consent order agreed to compromise his right to pursue subsequent

fees.” Maloney v. City of Marietta, 822 F.2d 1023, 1027 (11th Cir. 1987).

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B

A settlement agreement which is the functional equivalent of a consent

decree should be “interpreted as written.” Sierra Club v. Meiburg, 296 F.3d 1021,

1032 (11th Cir. 2002). See also United States v. Armour & Co., 402 U.S. 673, 682

(1971) (explaining that “the scope of a consent decree must be discerned within its

four corners, and not by reference to what might satisfy the purposes of one of the

parties to it”). As explained below, paragraph 25 of the settlement agreement is

unambiguous, and allows attorneys’ fees only in enforcement proceedings.

Paragraph 25 provides (emphasis ours) that the City would pay the

plaintiffs’ counsel the sum of $900,000 in attorneys’ fees, and that this payment

would “conclude all claims for attorneys[’] fees in the underlying litigation,

including pending appeals, and in regard to all other matters connected with this

Settlement Agreement, except enforcement proceedings, should such become

necessary after non-binding mediation as provided below.” The plaintiffs and the

City, in other words, chose to limit future attorneys’ fees to enforcement

proceedings.

Here there were no enforcement proceedings. The plaintiffs never claimed

that the City breached the settlement agreement/consent decree, and never sought

enforcement through civil contempt after non-binding mediation. See Reynolds v.

McIness, 338 F.3d 1201, 1208 (11th Cir. 2003) (“[C]onsent decrees, like all

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injunctions, are to be enforced through the trial court’s civil contempt power.”);

Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000) (explaining the process

by which a plaintiff seeks enforcement of a consent decree). Instead, they opposed

the City’s motion for modification, and following mediation came to an agreement

with the City on some changes. Because there were no enforcement proceedings,

the plaintiffs’ counsel are not entitled to an award of attorneys’ fees under

paragraph 25.

Our conclusion is reinforced by paragraph 30 of the agreement, which deals

with modification, the type of proceeding at issue here. Notably, paragraph 30

does not provide for the award of attorneys’ fees in proceedings to modify the

terms of the settlement agreement/consent decree. Simply put, enforcement and

modification are separate concepts (and constitute different proceedings) under the

terms of the parties’ agreement, and attorneys’ fees are available only in

enforcement proceedings. If we construed the agreement to allow for fees in

modification proceedings, we would, improperly, be adding language to paragraph

30 and nullifying the limitation in paragraph 25. See Mastrobuono v. Shearson

Lehman Hutton, Inc., 514 U.S. 52, 63 (1995) (counseling that an agreement should

be interpreted to “give effect to all its provisions and to render them consistent

with each other”).

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Mr. Peery’s reliance on cases like Binta B., 710 F.3d at 625-27, is misplaced.

The Sixth Circuit held in Binta B. that plaintiffs who achieve some success in

opposing modifications to a consent decree are considered prevailing parties under

§ 1988, but that case did not involve a settlement agreement/consent decree which

limited the availability of future attorneys’ fees. Here we have just that sort of

limitation, and it is the “agreement of the parties, rather than the force of the law . .

. that creates the obligations embodied in a consent decree.” Local No. 93, Int’l

Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522–23 (1986). Again,

we cannot rewrite paragraphs 25 and 30 to allow for attorneys’ fees in modification

proceedings.

The district court’s approval of the 2014 addendum after the parties’

successful mediation does not help Mr. Peery. It is true that, in the abstract, the

court’s approval of the 2014 addendum constituted the sort of judicial alteration in

the parties’ relationship that could make the plaintiffs prevailing parties under §

1988. See Chmielarz, 289 F.3d at 1320. But that is almost beside the point, for—

as we have said before—this is not the typical § 1988 case. The parties struck a

compromise about attorneys’ fees (past, present, and future) and deviated from §

1988 when they executed the original settlement agreement many years ago.

Because the 2014 addendum did not change paragraphs 25 and 30 of the settlement

agreement/consent decree, those bargained-for paragraphs continue to control the

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issue of attorneys’ fees. See Evans, 475 U.S. at 736; Maloney, 822 F.2d at 1027.

And under paragraph 25, attorneys’ fees are only available when there are

enforcement proceedings.

We recognize that, at some level, this result may not “feel” right. After all,

in the 2014 addendum the plaintiffs preserved much of the success they had

originally obtained. But when parties enter into a settlement agreement that turns

into the equivalent of a consent decree, they generally do so “after careful

negotiation,” the aim of which is to “produce[ ] [an] agreement on their precise

terms.” Armour & Co., 402 U.S. at 681. And we have explained that “[l]ong

standing precedent evinces a strong public policy against judicial rewriting of

consent decrees.” Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir. 2000).

Although it is important to compensate attorneys who help their clients prevail (or,

as is the case here, keep their hard-won gains) in civil rights cases, it is just as

important to hold parties to the terms of the bargains they strike to resolve

contentious and difficult § 1983 actions.

IV

The district court’s denial of Mr. Peery’s motion for attorneys’ fees is

affirmed. 2

2
Given our interpretation of the settlement agreement/consent decree, we need not and do not
address the district court’s ruling that the plaintiffs were not prevailing parties in the
modification proceedings.
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AFFIRMED.

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