Claudia Smalbein v City of Daytona Beach

[PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 03-12113 DECEMBE R 16, 2003 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 99-01676-CV-ORL-19-DAB CLAUD IA SMA LBEIN, as co-personal representative of the E state of P aul Sm albein, EDWA RD MIL LIS, as co-personal representative of the E state of P aul Sm albein, Plaintiffs -App ellants, versus CITY OF D AYT ONA BEA CH, GAR Y A. S AUL T, Off icer, T. A. P ERK INS, O fficer, individu ally and in their offic ial capacity, DAVID M. WILLIS , Officer, BRU CE M . MCB RIDE , Officer , individu ally, Defen dants-A ppellees. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (December 16, 2003) Before CARNES, BARKETT and DUHE *, Circuit Judges. * Honorable John Malcom Duhe, United States Circuit Judge for the Fifth Circuit, sitting by designation. PER CURIAM: Claudia Smalbein and E dward Millis, pe rsonal re presenta tives of th e Estate of Paul Smalbein, appeal the denial of their motion for an award of statutory attorney’s fees following a settlement agreement on their claims with the City of Daytona Beach and Police Officers Gary A . Sault, T.A. Perkins, David M . Willis, and Bruce M. McBride (collectively, “Daytona Beach Defendants”). Smalbein and Millis filed their motion for fees pursuant to 42 U.S.C. § 1988 (b),1 which allows for a fee a ward to the “prev ailing par ty” in suits b rough t for the v indication of civil rights. In respon se, the City of Day tona Be ach requ ested an e videntiar y hearing to determin e the mer its of Pau l Smalb ein’s 42 U .S.C. § 1 983 claim s in orde r to establish w hether S malbein and M illis were e ligible for § 1988 (b) attorn ey’s fees. The Magistrate Judge recommended that the motion for attorney’s fees be granted but that the evidentiary hearing be denied. The district court denied both the motion for attorn ey’s fees an d eviden tiary hearin g. Becaus e we fin d that Sm albein and Millis are prevailing parties under 42 U.S.C. § 1988, we reverse the district court’s denial of the motion for attorney’s fees and remand for the purpose of 1 § 1988 (b) provides that: In any action or proceeding to enforce a provision of sections . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs . . . . 2 holding an evide ntiary hea ring on the awa rd of atto rney’s fee s and co sts to Smalb ein and M illis per the te rms of th e parties’ se ttlement ag reemen t. I. BACKGROUND Paul Smalbein, the original plaintiff, filed a ten-count complaint against the City of Daytona Beach, the City of Daytona Beach Police Department, and various police of ficers. Sm albein alleg ed that his constitutio nal rights under th e First, Fourth, Eighth, and Fourteenth Amendments and the Civil Rights Act of 1871, 42 U.S.C . § 1983 , were v iolated fo llowing his arrest in a night clu b parkin g lot. Specific ally, Sma lbein claim ed that he was de prived o f his due process rights, his right to be free of excessive force, and the right to reasonable medical care under § 1983. He also alleged state law claims of false imprisonment, battery, and intention al infliction of emo tional distr ess. The compla int was la ter amen ded to allege eleven counts and named Claudia Smalbein and Edward Millis as plaintiffs after the death of Paul Smalbein.2 After mediation, the parties reached a settlement agreement whereby the City of Daytona Beach agreed to pay Smalbein and Millis $25,000. All issues raised in the amended complaint were settled except for payment of attorney’s fees and taxa ble costs, a nd the p arties jointly noticed th e district co urt of the ir 2 We note that Paul Smalbein’s death was unrelated to the facts of this case. 3 agreement. The district court dismissed the case with prejudice and referred any dispute as to the attorney’s fees and costs to the Magistrate Judge for a report and recommendation. The court later amended its order and dismissed the case without prejudic e until the D aytona B each City Council appro ved the s ettlement. Thereafter, Smalbein and Millis filed a motion for attorney’s fees under § 1988 (b). In response, the Daytona Beach Defendants filed a request for an evidentiary hearing on the merits of the § 1983 claims. Both the motion and the request for an evidentiary hearing were denied as premature because a final settlemen t had no t yet been r eached. After approval by the City of Daytona Beach and disbursement of the $25,000 to Smalbein and Millis, the district court incorporated the settlement agreement by reference into its order of dismissal and retained jurisdiction for the enforceme nt of its terms. Sm albein and M illis re-filed their motion for attorney’s fees, and the Daytona Beach Defendants responded again with a request for an evidentiary hearing on the merits of the § 1983 claims. The Magistrate Judge recommended that the evidentiary hearing be denied because the court should not be “entangled” in protracted litigation after the substantive issues of a case have been resolved. The Magistrate Judge also recommended that the motion for attorney’s fees be granted because the “significant” payment to Smalbein and 4 Millis of $25,000 and the disposal of Paul Smalbein’s § 1983 claims against the Daytona Beach Defendants made them the prevailing party under § 1988 (b). The district court agreed with the Magistrate Judge that an evidentiary hearing on the merits of the § 1 983 claims w as unnecessa ry but rejected the M agistrate Judge’s recomm endation that attorn ey’s fees b e paid. II. STANDARD OF REVIEW The proper standard for an award of attorney’s fees is a question of law that we review de novo. Logg erhead T urtle v. C ounty C ouncil, 307 F.3d 1318, 1322 (11th Cir. 2002) (citing Barnes v. Broward County Sheriff’s Office, 190 F.3d 1274, 1276-77 (11th Cir. 1999)). Any factual findings made relevant to that question are review ed for cle ar error. Id. (citing Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995)). A district court’s decision on whether to award attorney’s fees is reviewed for abu se of disc retion. Id. III. DISCUSSION Under the “American Rule,” United States courts follow “‘a general practice of not aw arding f ees to a pr evailing p arty’” in a su it. Buckhannon Board & C are Home, Inc., v. W. V a. Dept. of Health & H uman Res., 532 U.S. 598, 602 (2001) (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). However, where Congress has given courts “explicit statutory authority” under “fee-shifting” 5 statutes, the y may aw ard attorn ey’s fees to the prev ailing par ty. Id. Under § 1988 (b), Congress enumerated § 1983 as one of these fee-shifting statutes; therefore, Smalbein and Millis are eligible to seek an award of attorney’s fees on Paul Smalbein’s § 1983 civil rights claims under § 1988 (b) provided that they meet the test of being a “prevailing party.” The question here is whether Smalbein and Millis qualify as the prevailing party when their claims were settled pursuant to an agreement that the district court then incorporated into its order of dismissal and over which it retained jurisdiction for the enforcem ent of its terms. It is now established that in order to be considered a prevailing party under § 1988 (b), there must be a “court-ordered . . .‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Buckhannon, 532 U.S. at 604 (quoting Tex. State Teachers Ass’n. v. Garland Indep. S ch. Dist., 489 U .S. 782 , 792-9 3 (198 9)). In o ther wo rds, there must be : (1) a situation where a party has been awarded by the court “‘at least some relief on the merits of his claim’” or (2) a “jud icial imprimatur on the change” in the legal relationsh ip betw een the p arties. Id. at 603, 605 (quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)). Thus, one can be a prevailing party, for example, under an enforce able judg ment on the merits or und er a cour t-ordere d conse nt decree . Id. at 604. Either option constitutes a material alteration in the legal relationship of the 6 parties. One may be a prevailing party through formal entry of a consent decree as to a priva te settlemen t agreem ent because the agreement has the necessary judicial approval and oversight to be considered an alteration in the legal relationship of the parties w arranting an awa rd of atto rney’s fee s under § 1988 (b). Mahler v. Gagne, 448 U .S. 122 , 129 (1 980). The Supreme Court has also held that a federal court may have jurisdiction to enforce the terms of a private settlement agreement where a court has embodied the agree ment in a dismissa l order o r has spe cially retaine d jurisdic tion ove r it. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U .S. 375 , 381-8 2 (199 4). In applying this precedent, we have held in this Circuit that even where there has been no formal e ntry of a c onsent d ecree follo wing a settlemen t agreem ent, a district cou rt may still aw ard attorn ey’s fees to the prev ailing par ty as long as: (1) it has incorporated the terms of the settlement into the final order of dismissal or (2) it has exp licitly retained jurisdictio n to enfo rce the term s of the se ttlement. American Disability Ass’n v. Chmielarz, 289 F .3d 131 5, 1320 (11th C ir. 2002 ). Under either option, the district court “clearly establishes ‘judicially sanctioned change in the legal relationship of the parties,’ as required by Buckhannon, because the plaintiff thereafter may return to court to have the settlement enforced.” Id. A formal consent decree is unnecessary because the incorporation of the settlement 7 into a court order or the explicit retention of jurisdiction over the terms of the settlement are the “functional equivalent of an entry of a consent decree.” Id. This rule is consistent with many of our sister circuits who have likewise concluded that judicial action with sufficient judicial imprimatur other than a judgment on the merits or a court-ordered consent decree may allow for an award of attorn ey’s fees. See, e.g., Roberson v. Giuliani, 2003 WL 222327 80 (2d. Cir. 2003) ; Barrios v. C al. Interscholastic F ed’n, 277 F.3d 1128 (9th Cir. 2002); Oil, Chem. & Atomic Workers Int’l Union v. Dep’t of Energy, 288 F.3d 452, 458-59 (D.C. Cir. 2002) (finding that the parties’ stipulation and order of dismissal was not enough to “meaningfully alter the legal relationship of the parties,” but had they don e so, Buckhannon would not prec lude an a ward o f fees); Smyth v. Rivero, 282 F .3d 268 (4th Cir . 2002) ; Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159 (3d Cir . 2002) . Cf. Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003) (“Buckhannon, as indicated, mak es it clear that a party prevails only if it receives either an e nforcea ble judg ment on the merits or a con sent decr ee.”) (em phasis added) . In this case, the Magistrate Judge and the district court correctly concluded that because the final settlement between the parties was incorporated by reference into the o rder of d ismissal and the court retained jurisdiction to enforce the terms 8 of the settlement agreement, it judicially altered the legal relationship of the parties, and thus functioned as the equivalent of a consent decree under Chmielarz. Although the $25,000 had been paid to Smallbein and Millis, the court retained jurisdiction to enforce all other terms in the settlement agreement including those related to the release and discharge of all claims by both parties, 3 the promise by Smalbein and M illis to pay any outstanding medical bills,4 the indemnification 3 The parties’ settlement agreement provides that: Smalbein hereby forever releases and discharges [Daytona Beach Defendants], and their past and present agents, servants, representatives, elected officials, attorneys, and their successors, legal representatives and assigns (all the aforementioned individuals and entities are hereinafter referred to as “Releasees”), from any and all claims, actions, causes of action, demands, rights damages, losses, loss of services, lost profit or income claim, punitive damage claim, and any other claim or loss whatsoever that Smalbein now has or which may hereafter accrue on account of or in anyway growing or arising out of (directly or indirectly) any claim against Releasees arising out of the arrest and detention of Paul Smalbein at anytime, or otherwise growing or arising out of any of the facts, circumstances, or allegations as set forth in any complaint filed in the United States District Court, Middle District of Florida, Orlando Division, Case Number 6:99-CV 1676-ORL-19DAB. . . . Moreover, Releasees agree that they will not pursue any sort of claim against Smalbein, nor will they pursue any sort of claim against Smalbein for anything that has occurred before the signing of this release. Releasees hereby agree that they release and discharge Smalbein in the same manner that Smalbein has released and discharged Releasees as set forth above. Mutual Complete Release of Claims, May 9, 2002, at 1, 3. 4 The parties’ agreement states, in relevant part, that: As a further consideration and inducement for this compromise settlement, Smalbein warrants that there are no outstanding physician, hospital, or other medical bills which were incurred as a result of the aforementioned incident, or if there are any such medical bills outstanding, that those medical bills will be paid, 9 clause for any medically related claims, judgments, demands, or expenses which may subsequently arise out of the arrest and detention of Paul Smalbein,5 as well as the payment of attorney’s fees. 6 Although holding that the parties’ settlement agreement was the equivalent of a con sent decr ee, the distr ict court n onethele ss denied attorney’s fees to Smalbein and Millis finding that the “overarching motif of § 1988 jurisprudence” is that “the vindication of a plaintiff’s rights on the merits of her claims is a condition precedent to any award of attorney’s fees.” Order of District Judge, March 25, 2003, at 10. We disagree with that determination because a party may be considered a prevailing party under a consent decree without any admission of liability on th e merits o f the und erlying cla ims or a requirem ent that the other pa rty satisfied, and discharged from the settlement proceeds. Mut. Complete Rel. of Claims at 3. 5 The settlement agreement further provides that: Smalbein further represents and warrants that the undersigned agree to indemnify, defend, and save harmless Releasees from any and all claims, judgments, demands, or expenses whatsoever which any physician, health care provider, hospital, governmental agency, Blue Cross/Blue Shield, insurance company, medicare, medicaid, HMO, or anyone else may hereafter bring or assert on account of any injury or damage resulting from the subject matter of the contentions and claims above mentioned. Id. at 3. 6 See supra note 9. 10 modify a policy, procedure or practice. All that is necessary is that some relief be award ed by the court. 7 Buckhannon, 532 U .S. at 603 . Buckhannon does not require explicit vindication on the merits of the claim in additio n to the parties settlement agreement in order for Smalbein and Millis to be considered as the prevailing party. Buckhannon provides that when there is either an enforceable judgment on the merits or a settlement agreement enforced through a court-ordered consent decree, a material alteration of the legal relationship of the parties occurs, and the test to be d eemed a prevailin g party h as been m et. Utility Automation 2000, Inc., v. Choctawhatchee Elec. Coop., Inc., 298 F.3d 1238, 1248 (11th Cir. 2002). Although a consent decree does no t always in clude an admissio n of liability on the m erits by the defen dant, it no netheless meets the test. Buckhannon, 532 U.S. at 604 (emphasis added). “Nothing in the language of § 1988 conditions the District Court’s power to award fees on full litigation of the issues or on a judicial determination that the plaintiff’s rights have been violated . . . the Senate Report expressly stated that ‘for purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent 7 The district court would be justified in denying an award of attorney’s fees only “where the plaintiff’s success on a legal claim can be characterized as purely technical or de minimus.” Tex. State Teachers Assoc., 489 U.S. at 792. 11 judgment . . . .’” Mahler, 448 U.S. at 129. What is important is that under a settlement agreement that is the functional equivalent of a consent decree, “the plaintiff thereafter may return to court to have the settlement enforced.” Chmielarz, 289 F .3d at 13 20. “[I]n the case of court-approved settlements and consent decrees, even if there has been no judicial determination of the merits, the outcome is at least the product of, and bears the sanction of, judicial action in the lawsuit.” Buckhannon, 532 U.S. at 618 (Scalia, J., concurring). As held by the Supreme Court, “if the plaintiff has succeeded on ‘any significant issue . . . which achieve[d] some of the benefit the parties sought in bringing suit,’ the plaintiff has crossed the threshold to a fee award of some kind.” Tex. State Teachers Ass’n., 489 U.S. at 791-92 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) . In this case, Paul Smalbein’s original complaint solely sought relief in the form o f mone tary dam ages for the § 19 83 claim s. Und er the settlem ent agree ment, Smalbein and Millis received monetary damages on Paul Smalbein’s § 1983 claims. This is sufficient for them to be considered the prevailing party. “[T]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties . . . where such a change has occurred, the degree of the pla intiff’s ov erall succe ss goes to the reaso nablene ss of the a ward . . . n ot to 12 the availability of a fee award vel non.” Id., 489 U.S. at 792-93. Notw ithstandin g their en titlement to fees as prevailing p arties, the City of Dayton a Beach argues th at under the settlem ent agree ment S malbein and M illis must still have a trial on the merits of the § 1983 claims and prove them meritorious before they may be awarded re asonable attorney’s fees and costs. 8 Thus, we are confronted with a document that purports to be both a settlement and not a settlement. It is clear that both parties to this agreement knew and accepted the fact tha t the $25 ,000 w hich w as paid w as intend ed only to compe nsate Smalbein and Millis and did not include attorney’s fees and costs. At the same time, both parties knew and accepted the fact that attorney’s fees and costs were 8 The parties’ settlement agreement states: The parties stipulate and agree that they will litigate whether Frederick C. Morello, P.A. and/or Smalbein are entitled to collect attorney fees and costs under the causes of action pled in the most recent complaint filed in the pending litigation (referenced above). The parties stipulate that the issue of entitlement to attorney fees and costs will be submitted to the Federal Court to determine whether Frederick C. Morello, P.A. or Smalbein would be entitled to collect attorney fees and costs under the causes of action last pled in the lawsuit and the parties further stipulate to an evidentiary hearing on the causes of action last pled to determine their merit, or lack thereof, to determine the issues of Plaintiff’s entitlement to attorneys fees. . . . The parties hereby agree that this matter can be heard either by the District Court Judge, or alternatively the Federal Magistrate Judge. . . . The parties further agree that at the trial/evidentiary hearing regarding entitlement to attorney fees and costs, the parties can present evidence either through witness testimony or deposition testimony. A jury trial is waived by both sides. (emphasis added) Mut. Complete Rel. of Claims at 1-2. 13 being sought by Smalbein and Millis and conditioned an award upon the court retaining jurisdiction in order to determin e wheth er Sma lbein’s claim s had m erit. 9 While the settlement agreement in this case is unusual, we find that the terms at issue regarding attorney’s fees and costs are a material part of their agreement and are neither invalid nor unenforceable. We have no basis under § 1988 (b) for ignorin g the pro visions th at the partie s bargain ed for in an arms -length tr ansaction . The Supreme Court has held that under the language of § 1988 and its legislative history, “while it is undoubtedly true that Congress expected fee shifting to attract competent counsel to represent citizens deprived of their civil rights, it [did not render] them nonwaivable or nonnegotiable; instead, it added them to the arsenal of remedies available to combat violations of civil rights . . . .” Jeff V. Evans v. Jeff. D., 475 U.S. 717, 731-32 (1986) (upholding an agreement in a class action suit that conditioned settlement upon a waiver of statutory attorney’s fees under 42 U.S.C. § 1988). 9 As stated in the parties settlement agreement: This release, however, does not include any claim that Smalbein or Frederick C. Morello, P.A. may have for attorney fees and costs . . . If the Federal Court determines that Frederick C. Morellos, P.A. or Smalbein are entitled to collect attorney fees and costs, the Federal Court will also determine the amount unless the parties stipulate to an amount before the entitlement hearing. The Plaintiff has agreed to limit said attorney fees to no more than $80,000.00 for the trial court award if this settlement is approved and only the fee issues remain. Mut. Complete Rel. of Claims at 1, 2. 14 Accor dingly, w e find tha t the district c ourt erre d in hold ing that S malbein and Millis were not the prevailing parties under § 1988 (b), and REVERSE and REMAND for the district court to hold an evidentiary hearing on the merits of Smalbein’s § 1983 claims with regard to a reasonable award of attorney’s fees and costs. 15 CARNES, Circuit Judge, concurring: I agree with the Court that the settlement agreement altered the legal relationship of the parties to a sufficient extent that the plaintiff is a prevailing party for purposes of 42 U.S.C. § 1988. As a result, the plaintiff would have been entitled to attorney’s fees but for one provision in the settlement agreement. Under that provision attorney’s fees and costs are to be awarded only if the district court decides after an evidentiary hearing that plaintiff’s claims had merit. The Court correctly remands the case for that evidentiary hearing, because the attorney’s fees provisio n in the se ttlement ag reemen t is not inv alid or un enforce able. I w rite separately to explain in more detail wh y it is not. The settlement agreement in this case is unusual. We do not often see the parties stipulate to the payment of an amount in settlement of the liability issue, while at the same time agreeing to condition attorney’s fees and costs on a decision by the dis trict court o f wheth er the plain tiff’s claims had me rit. That is e xactly what the parties in this case did, and for good measure they also agreed to a cap of $80,00 0.00 on the amo unt of atto rney’s fee s the distric t court co uld aw ard. Odd though it be, there is nothing illegal about this provision in the settlement agreement that the award of attorney’s fees will be decided by the district court based upon the merits of claims for which liability has been 16 compromised and settled by the parties. The provision is not void on the theory that it conf licts with 4 2 U.S.C. § 19 88, wh ich is the atto rney’s fee s statute applicable to 42 U.S.C. § 1983 cases. The Supreme Court’s decision in Evans v. Jeff D., 475 U .S. 717 , 106 S . Ct. 153 1 (198 6), mak es it clear tha t the prov ision is entirely co nsistent w ith § 198 8. In Jeff D. the parties settled a class action lawsuit seeking injunctive relief by agreeing to virtually all of the relief the plaintiffs sought, but they also agreed that the pla intiffs w ould no t be awa rded an y attorney ’s fees or c osts. Id. at 722, 106 S . Ct. at 153 4-35. T he plaintif fs filed a m otion req uesting th e district co urt to approve th e settlement excep t for the prov ision denying them costs an d attorney’s fees, and to allow them to present a bill of costs and fees for consideration by the court. Id. at 723, 106 S. Ct. at 1535. Treating the provision barring an award of costs and fees as a material part of the settlement agreement, the district court enforced that provision just as it did other parts of the settlement. The result was that even though the plaintiffs clearly were prevailing parties in the lawsuit for purpo ses of § 1 988, the y received no costs or attorn ey’s fees. Id. at 723-24, 106 S. Ct. at 1535. The Ninth Circuit reversed and remanded to the district court for determination of reasonable attorney’s fees, concluding that, in the absence of 17 unusual circumstances, “a stipulated waiver of all attorney’s fees obtained solely as a condition for obtaining relief for the class should not be accepted by the court.” Jeff D. v. Evans, 743 F .2d 648 , 652 (9 th Cir. 19 84). Th e Ninth Circuit b ased its holding on two grounds. First, the Court held that simultaneous negotiation of class action settlements and attorney’s fees was not appropriate absent special circums tances. Id. The court’s reasoning was that class representatives should not be faced with the choice between obtaining relief for the class through settlement but forgoing attorney’s fees, or rejecting the offered relief for the class in the hope of eventually recovering fees that will satisfy any personal liability the class represen tative may have to c ounsel. Id. The second basis for the N inth Circuit’s Jeff D. decision was that Congress had intended fee-shifting to be an induce ment for bringing valid civil rights cases, and therefore “a successful section 1983 claimant ‘should ordinarily recover an attorney’s fee un less special circum stances wo uld render su ch an awa rd unjust,’” and no such “sp ecial circum stances” w ere prese nt in that ca se. Id. at 651 (quoting from th e legislative history in cident to e nactmen t of § 19 88 (citatio n omitted )). The Court remanded with instructions for the district court to award costs and attorney’s fees to the plaintiffs, id. at 652, the same as though the settlement agreem ent had n ot barred them. 18 In other words, the Ninth Circuit in Jeff D. reached the same conclusion the plaintiff would have us reach in this case: a provision limiting the award of attorney’s fees to a p revailing party is un enforce able beca use it is inco nsistent w ith § 1988, an d according ly the provision should be ig nored. Th e Ninth C ircuit’s decision would be persuasive authority for the plaintiff’s position in this case but for the fa ct that the S uprem e Cour t reversed it. In the course of reversing the Ninth Circuit’s decision in Jeff D., the Supreme Court expressed its belief that “a general proscription against negotiated waiver of attorn ey’s fees in exchan ge for a s ettlement o n the me rits wou ld itself impede vindication of civil rights . . . by reducing the attractiveness of settlement.” 475 U .S. at 732 , 106 S . Ct. at 154 0. More importantly for present purposes, the Supreme Court in Jeff D. expressly rejected the contention that either the text or the legislativ e history b ehind § 1988 is inconsis tent with attorney’s fees wa ivers in settlemen t agreem ents. Id. at 731-32, 106 S. Ct. at 1539-40.1 As for the text of § 1988, the Supreme Court explained that the language 1 Although the Supreme Court does not expressly address “costs” as distinct from “attorney’s fees” in its discussion of legislative intent, a later statement in its opinion indicates that a waiver of “costs” is also permitted under § 1988. See Jeff D., 475 U.S. at 733, 106 S. Ct. at 1540 (“To promote both settlement and civil rights, we implicitly acknowledged in Marek v. Chesny the possibility of a tradeoff between merits relief and attorney’s fees when we upheld the defendant’s lump-sum offer to settle the entire civil rights action, including any liability for fees and costs.”). And, of course, there is no good reason to permit waiver or conditioning of fees but not costs. 19 Congress used had “neither bestowed fee awards upon attorneys nor rendered them nonwaivable or nonnegotiable,” but instead had simply “added them to the arsenal of reme dies availa ble to com bat violatio ns of civ il rights, a goal not in variably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney’s fees.” Id. As for legislative h istory, the S uprem e Cour t noted th at in enacting § 1988 Congress had specifically rejected a proposal that would have made th e award of attorn ey’s fees m andator y, and the Court r easoned that it wo uld “strain prin ciples of s tatutory in terpretatio n to con clude tha t Cong ress inten ded to utilize fee non-negotiability to achieve the purposes of section 1988.” Id. at 732 n.22, 106 S. Ct. at 1540 n.22. The S uprem e Cour t’s statemen ts and rea soning in Jeff D. are flatly inc onsisten t with pla intiff’s po sition in th is case. It is also impossible to square that position with the result in Jeff D. If it is permiss ible for th e parties to a settlemen t agreem ent to com pletely disp ense w ith attorney’s fees even though the plaintiff is a prevailing party under § 1988 and regardless of the merits of the plaintiff’s claims, and we know from Jeff D. that it is, then it must be p ermissible for th e parties to cond ition the award of attorney’s fees on whether the plaintiff’s claims had any merit. In Jeff D. the Supreme Court recognized as “undoubtedly true” the fact that Congress in enacting § 1988 “expected fee shifting to attract competent counsel to represent citizens deprived of 20 their civil rights.” Id. at 731, 106 S. Ct. at 1539 (citation omitted). In light of that purpose, it would be illogical to permit the parties to agree in a settlement that the plaintiff is n ot to receiv e attorney ’s fees eve n thoug h he has been de prived o f his civil rights , but not p ermit them to agree th at the plain tiff will rec eive fees o nly if he can sh ow a d eprivatio n of his c ivil rights. The agreem ent in this case, keyed as it is to the merits of th e plaintiff’s claims, is m ore con sistent w ith the con gression al purpo se behin d § 198 8, whic h is to encourage the bringing of arguably meritorious claims, than is the agreement the Supreme Court honored and enforced in Jeff D. Under the agreement in this case, the plaintiff will receive attorney’s fees if the claims he brought are meritorious, while under the agreement enforced in Jeff D. the plaintiff would not. It makes no sense to enforce a provision that detaches attorney’s fees from the merits of the claims brought, as the Supreme Court did in Jeff D., yet refuse to enforce one that links fees to their merits, as plaintiff would have us do. If there is to be any difference, it ought to run the other way. Given our obligation to follow Supreme Court decisions, howe ver, the m ost we c an do is a void the anoma ly of a reg ime in which a Jeff D. type agreement is permitted while the type of agreement reached in this case is not. There are, of course, substantial practical differences between the type of 21 agreement in Jeff D. and the one in this case. The type of agreement before the Court in Jeff D. brings the entire litigation to a close, a blessed event in our judicial system. The type of agreement in this case merely narrows the issues to be litigated, which is not as much of a blessing but is better than having no agreement at all. High-low settlement agreements, which leave the merits of a case for trial but brac ket the pa rties’ risk o f litigation, a re not un usual, see, e.g., Hoops v. Watermelon City Trucking, Inc., 846 F .2d 637 , 639 (1 0th Cir. 1 988), an d this agreement is not unlike one of those. The principal terms of the parties’ agreement in this case are that: there would b e a determination of the merits of the plaintiff’s claims, bu t it would be mad e by the ju dge inste ad of a ju ry; the plain tiff wou ld receive exactly $25,000.00 in damages, regardless of what the judge determined about the merits; the defendants would pay the plaintiff attorney’s fees if the judge determin ed there w as merit to his claims ; and any attorney’s fees aw arded co uld not exce ed $80 ,000.00 in any ev ent. 2 However unusual it is, this settlement agreement did streamline the issues and pro vide an e xpeditio us way of resolv ing the re maining ones by bench tr ial. The agreement removed from contention: the issue of whether any compensatory 2 There was also a provision in the agreement under which the plaintiff warranted that there were no medical bills outstanding, to pay out of the settlement proceeds any that might be, and to indemnify the defendants against any claims that might arise against them because of related medical bills. 22 damages should be awarded to the plaintiff, the issue of how much those damages should be, and the issue of whether the plaintiff might be entitled to more than $80,000 .00 in attorney’s fe es. And it left the d etermination o f whether a ttorney’s fees should be awarded to turn on the merits of the plaintiff’s claims, which were to be decided by the court instead of a jury. From the judiciary’s perspective, what the parties agreed to is not as desirable as a full settlement, but it beats a trial by jury of all liability and damages issues followed, if the plaintiff prevails, by an attorney’s fees pro ceeding with no cap on th e amou nt to be aw arded. None of this means that the district court was required to accept the settlement agreement. Rejecting it in toto probably would n ot have been an abuse of discretion. By the same token, the district court probably could have conditio ned its acc eptance o f the agre ement o n mod ification o f one or more o f its terms, so long as the court gave the parties a choice between either going along with any modifications the court thought appropriate, or proceeding with the litigation w ithout the agreem ent. What the district court could not do about the settlement agreement without abusing its discretion is take an agreement hammered out between represented parties an d delete o ne of its cr ucial term s, a term th at one pa rty barga ined har d to get, without giving that party an opportunity to withdraw from the altered 23 agreem ent. See Jeff D., 475 U.S. at 726, 106 S.Ct. at 1537 (“the power to approve or reject a settlement negotiated by the parties before trial does not authorize the court to r equire th e parties to accept a se ttlement to which they hav e not agr eed”). It is too late to give the parties an opportunity to back out of the agreement now, because the defendants have paid the agreed upon sum to settle the claims to the plaintiff, an d as plain tiff’s coun sel has inf ormed us, that m oney is g one. Th e only proper thing that we can do now is what the Court does, which is to remand the case for th e district co urt to carr y out the te rms of th e agreem ent that rela te to attorney’s fees. 24