[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 01, 2002
No. 01-15366 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-07281 CIV-WJZ
AMERICAN DISABILITY
ASSOCIATION, INC.,
Plaintiff-Appellant,
versus
ARIEL CHMIELARZ,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 1, 2002)
Before ANDERSON, Chief Judge, DUBINA and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
This appeal arises from a suit filed by appellant American Disability
Association (“Association”) against Ariel Chmielarz under the Americans With
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Prior to trial, the parties
entered a settlement, which was “approved, adopted and ratified” by the district
court in a final order of dismissal, and over which the district court expressly
retained jurisdiction to enforce its terms. Subsequently, the Association sought
attorneys’ fees and costs pursuant to Section 505 of the ADA, 42 U.S.C. § 12205.
The district court determined that the Association was not a “prevailing party” as
that term was defined in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001),
and therefore denied the motion. Because the district court’s approval of the terms
of the settlement coupled with its explicit retention of jurisdiction are the
functional equivalent of a consent decree and, therefore, the settlement constitutes
a “judicially sanctioned change in the legal relationship of the parties,” the
Association plainly is a “prevailing party” entitled to recover attorneys’ fees under
42 U.S.C. § 12205. Accordingly, we reverse the district court’s denial of fees and
remand for a determination of the amount.
I.
On September 5, 2000, the Association sued Chmielarz in the United States
District Court for the Southern District of Florida alleging that certain physical
barriers at a gas station he owns in Ft. Lauderdale, Florida violated the ADA.
Specifically, the complaint cited the following violations: (1) there were no
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handicapped parking spaces at the gas station; (2) there was a 6-inch elevation
change between the parking lot and sidewalk; (3) there was an elevation change
along the route to the public bathroom; (4) the ramp to the public toilet exceeded
the maximum allowable slope; (5) the store entry door was difficult to open; (6) the
sales counter did not have the requisite portion 36 inches or lower in height; (7)
there were no grab bars mounted in the bathroom; (8) the sink did not provide
sufficient clearance for a wheelchair; (9) the faucets and paper towel dispenser
were mounted above maximum height restrictions and were difficult to turn; and
(10) the route to the toilet was too narrow. Chmielarz moved for summary
judgment on the grounds that the Association lacked standing to pursue the action.
The district court denied that motion and, by a separate order issued March 27,
2001, determined that the Association could assert organizational standing on
behalf of its members. Two weeks after the second order was issued, the parties
notified the court that they were in the process of negotiating a settlement.
The settlement stated that, in return for a dismissal of all claims against him,
Chmielarz would make the modifications to his property necessary to bring it into
compliance with the ADA. Specifically, Chmielarz agreed to remedy the problems
identified by a building inspector, which included most of the defects specified in
the Association’s complaint. The settlement also stated that
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[t]he parties have agreed that Plaintiff is entitled to reasonable attorney’s
fees and costs, but cannot agree upon amounts to which Plaintiff is
entitled. It is agreed that the Plaintiff shall submit, through Motion, the
issue of amounts of reasonable fees and costs to the Court for
determination.
Once the settlement was finalized, the parties submitted to the court a
“Stipulation of Voluntary Dismissal With Prejudice” in which they stipulated to
the dismissal of the action and requested “the Court to retain jurisdiction to enforce
the terms of the Stipulation for Settlement and to determine amounts of reasonable
fees and costs to which [the Association] is entitled, which the parties agree will be
disposed of by Motion.” The district court then entered a Final Order of Dismissal
in which it specifically “approved, adopted and ratified” the Stipulation of
Voluntary Dismissal With Prejudice, dismissed the case with prejudice, and
expressly “retain[ed] jurisdiction solely for the purpose of enforcing the Settlement
Agreement.”
The Association then filed a motion and supporting memorandum for fees
and costs pursuant to the terms of the settlement agreement. It sought $17,192.65.
The district court denied the motion on the grounds that the Association was not a
“prevailing party” under the ADA. Specifically, the district court observed that,
prior to Buckhannon, the Association could have obtained fees pursuant to the
“catalyst theory,” but that after Buckhannon, “a party is not a prevailing party for
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purposes of the ADA unless they obtain either (1) a judgment on the merits or (2) a
court ordered consent decree.” Because, in its view, the Association had “acquired
no such court ordered change in its legal relationship with” Chmielarz, the district
court found that the Association was not entitled to recover fees or costs under the
ADA.1 This appeal followed.
II.
Section 505 of the Americans with Disabilities Act provides that “[i]n any
action or administrative proceeding commenced pursuant to this chapter, the court
or agency, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee, including litigation expenses and costs.” 42
U.S.C. § 12205. In this circuit prior to Buckhannon, a plaintiff could be a
“prevailing party” pursuant to that provision even if the parties reached a private
settlement or otherwise discontinued the litigation. Under the “catalyst theory,”
1
The district court’s order was entered on August 20, 2001. Because a final
judgment had not been entered, the Association moved on September 6, 2001 to
have the district court direct its clerk to enter judgment pursuant to Fed. R. Civ. P.
58. The district court granted that motion “out of an abundance of caution” on
October 12, 2001. It does not appear, however, that the district court clerk entered
the final judgment. Neither party has questioned our jurisdiction as result of this
failure, and the Association filed its appeal in a timely manner. Because we have
made it clear that “the lack of a Rule 58 separate judgment does not preclude our
jurisdiction,” Reynolds v. Golden Corral Corp., 213 F.3d 1344, 1345 (11th Cir.
2000), we do not address this issue.
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plaintiffs could recover fees so long as they had “succeeded on any significant
issue in litigation which achieves some of the benefit the parties sought in bringing
suit.” Morris v. City of West Palm Beach, 194 F.3d 1203, 1207 (11th Cir. 1999)
(internal punctuation and citations omitted). In Buckhannon, however, the
Supreme Court specifically invalidated the “catalyst theory,” 532 U.S. at 605, 121
S. Ct. at 1840, and, in so doing, changed the landscape of the “prevailing party”
inquiry.
The Court invalidated the “catalyst theory” because “[i]t allows an award
where there is no judicially sanctioned change in the legal relationship of the
parties.” Id. Instead, the Court said that a plaintiff could be a “prevailing
party”only if it was “awarded some relief” by the court and achieved an “alteration
in the legal relationship of the parties.” Buckhannon, 532 U.S. at 603-605, 121 S.
Ct. at 1839-40. The Court stated specifically that a plaintiff achieved such
prevailing party status if it (1) received at least some relief -- including nominal
damages -- on the merits, or (2) signed a settlement agreement “enforced through a
consent decree.” Id. at 603-04, 121 S. Ct. at 1840.
In saying that “a party is not a prevailing party for purposes of the ADA
unless they obtain either (1) a judgment on the merits or (2) a court ordered
consent decree,” the district court interpreted Buckhannon to stand for the
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proposition that a plaintiff could be a “prevailing party” only if it achieved one of
those two results. That reading of Buckhannon, however, is overly narrow.
Indeed, the Court did not say that those two resolutions are the only sufficient
bases upon which a plaintiff can be found to be a prevailing party. See Smyth v.
Rivero, 282 F.3d 268, 281 (4th Cir. 2002) (“We doubt that the Supreme Court’s
guidance in Buckhannon was intended to be interpreted so restrictively as to
require that the words ‘consent decree’ be used explicitly.”); Nat’l Coalition for
Students With Disabilities v. Bush, 173 F. Supp. 2d 1272, 1278 (N.D. Fla. 2001)
(“The Supreme Court’s discussion of consent decrees and private settlements fell
short of a holding that fees may be recovered only if there is a consent decree, not a
mere private settlement.”) (emphasis in original). Rather, the Court used those
examples to show that “the ‘catalyst theory’ falls on the other side of the line” from
cases in which plaintiffs should be considered “prevailing parties.” Buckhannon,
532 U.S. at 604-05, 121 S. Ct. at 1840. Indeed, while observing that either a
judgment on the merits or a consent decree clearly are sufficient to make the
plaintiff a “prevailing party,” the essential test established by the Court requires the
plaintiff to achieve a “judicially sanctioned change in the legal relationship of the
parties.” Id. at 605, 121 S. Ct. at 1840.
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More specifically, the Court did not determine whether a plaintiff could
achieve a sufficient “alteration in the legal relationship of the parties” through a
settlement entered without a separate consent decree. In fact, private settlements
were mentioned only in a footnote, which observed that
[p]rivate settlements do not entail the judicial approval and oversight
involved in consent decrees. And federal jurisdiction to enforce a private
contractual settlement will often be lacking unless the terms of the
agreement are incorporated into the order of dismissal.
Id. at 604 n.7, 121 S. Ct. at 1840 n.7 (citing Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994)). 2
When read together with Buckhannon, the case cited by the Court in its
footnote regarding private settlements, Kokkonen, easily resolves this case. In
2
Since Buckhannon, a circuit split has developed regarding whether a private
settlement, without further judicial action, constitutes an “alteration in the legal
relationship of the parties” sufficient to make the plaintiff a “prevailing party.”
Compare Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128, 1134 & n.5 (9th Cir.
2002) (finding that, because the plaintiff could “enforce the terms of the settlement
agreement against the [defendant],” he was a “prevailing party” regardless of the
lack of a separate consent decree or specific retention of jurisdiction by the court),
with N.Y. State Fed’n of Taxi Drivers, Inc. v. Westchester County Taxi &
Limousine Comm’n, 272 F.3d 154, 158-59 (2d Cir. 2001) (reversing a grant of fees
where the parties entered a private settlement, and the district court simply entered
an order dismissing the case as moot). We need not address that question today
because, for the reasons we’ve explained at some length, the district court’s
explicit approval of the settlement and express retention of jurisdiction to enforce
its terms, are the functional equivalent of a consent decree and, therefore, plainly
separate this case from those in which a private settlement is unaccompanied by
any further judicial action.
8
Kokkonen, prior to the close of trial, the parties agreed to a settlement and
voluntary dismissal with prejudice. 511 U.S. at 376, 114 S. Ct. at 1674-75. The
district court signed the dismissal but, notably, did not retain jurisdiction to enforce
its terms or “so much as refer to the settlement agreement” in its order. Id. at 377,
114 S. Ct. at 1675. Shortly thereafter, the parties disagreed about their obligations
under the agreement, and one side moved to have the district court enforce the
settlement. On the basis of its “inherent power,” the district court entered an
“enforcement order.” Id. In affirming the Ninth Circuit’s reversal of that order,
the Supreme Court held that there was no basis for a federal district court to assert
jurisdiction over an alleged “breach of an agreement that produced the dismissal of
an earlier federal suit.” Id. at 379, 114 S. Ct. at 1676. Importantly, the Court
observed that
[t]he situation would be quite different if the parties’ obligation to
comply with the terms of the settlement agreement had been made part
of the order of dismissal -- either by separate provision (such as a
provision “retaining jurisdiction” over the settlement agreement) or by
incorporating the terms of the settlement agreement in the order. In that
event, a breach of the agreement would be a violation of the order, and
. . . jurisdiction to enforce the agreement would therefore exist.
Id. at 381, 114 S. Ct. at 1677 (emphasis added).
Thus, it is clear that, even absent the entry of a formal consent decree, if the
district court either incorporates the terms of a settlement into its final order of
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dismissal or expressly retains jurisdiction to enforce a settlement, it may thereafter
enforce the terms of the parties’ agreement. Its authority to do so clearly
establishes a “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. A formal consent decree is unnecessary in these
circumstances because the explicit retention of jurisdiction or the court’s order
specifically approving the terms of the settlement are, for these purposes, the
functional equivalent of the entry of a consent decree. See Smyth, 282 F.3d at 281
(“Where a settlement agreement is embodied in a court order such that the
obligation to comply with its terms is court-ordered, the court’s approval and the
attendant judicial over-sight (in the form of continuing jurisdiction to enforce the
agreement) may be equally apparent.”); Nat’l Coalition, 173 F. Supp. 2d at 1279
(“[T]he parties’ voluntary Settlement Agreement and resulting order and judgment
requiring compliance with that Agreement have the same effect, for purposes of
establishing prevailing party status, as would a litigated order imposing the same
terms.” ).
In this case, the district court, in the order of dismissal, not only specifically
“approved, adopted and ratified” the parties’ settlement, but also expressly retained
jurisdiction to enforce its terms. The formal entry of a consent decree was wholly
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unnecessary and would not affect the status of the parties or the district court’s
power to enforce the terms of the settlement. Rather, by approving the settlement
agreement and then expressly retaining jurisdiction to enforce its terms, the district
court effected precisely the same result as would have been achieved pursuant to a
consent decree.
Indeed, by entering the settlement, Chmielarz bound himself to provide: an
accessible route from the sidewalk to his property, handicapped parking spaces,
additional signage, ADA-compliant telephones, handicapped accessible restrooms,
a ramp, ADA-compliant door hardware, an accessible service counter, and
additional maneuvering space in the service area. Further, he agreed
unambiguously to make those changes within six months of entering the settlement
and to permit the Association to inspect the premises upon completing the work.
Should he fail to meet those conditions, the district court, having expressly retained
jurisdiction, could enforce the terms, even by use of its contempt power. See
Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000) (explaining that
injunctions, including consent decrees, are enforced through the trial court’s civil
contempt power). Thus, under Buckhannon, the Association has achieved an
“alteration in the legal relationship of the parties” sufficient to render it a
“prevailing party.”
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In short, we hold that the district court erred by refusing to award attorneys’
fees and costs. The settlement, expressly approved by the district court, constitutes
a “judicially sanctioned change in the legal relationship of the parties,” and
therefore the Association is a “prevailing party” under the standards explained in
Buckhannon. Accordingly, the district court’s order is reversed, and the case is
remanded for a determination of the appropriate amount of fees to which the
Association’s counsel is entitled.
REVERSED AND REMANDED.
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