346 F.

3d 75

Micheline ROBERSON, Gladys Dobelle, Martin Smith and Ned

Buskirk, on their own behalf and on behalf of all others
similarly situated, Plaintiffs-Appellants,
v.
Rudolph GIULIANI, as Mayor of the City of New York and
Jason Turner, as Commissioner of the New York City
Department of Social Services, Defendants-Appellees, Brian J.
WING, as Commissioner of the New York State Office of
Temporary and Disability Assistance and Antonia Novello, as
Commissioner of the New York State Department of Health,
Defendants.
No. 02-7306.

United States Court of Appeals, Second Circuit.

Argued: November 1, 2002.
Decided: September 30, 2003.

RANDAL S. JEFFREY, New York Legal Assistance Group, New York,

NY, (Yisroel Schulman, on the brief), for Plaintiffs-Appellants.
CAROLINE M. BROWN, Corporation Counsel of the City of New York,
New York, N.Y. (Michael A. Cardozo, Kristin M. Helmers and Helen P.
Brown, on the brief), for Defendants-Appellees.
(Ellen M. Yacknin, Greater Upstate Law Project, Inc., Rochester, NY, for
Amicus Curiae Brennan Center for Justice at New York University
School of Law, Center for Battered Women's Legal Services at Sanctuary
for Families, Greater Upstate Law Project, Northern Manhattan
Improvement Corporation, Partnership for the Homeless, Public Interest
Law Office of Rochester, Urban Justice Center, Welfare Law Center, in
support of Plaintiffs-Appellants.)
Before: FEINBERG, CARDAMONE, and SACK, Circuit Judges.
FEINBERG, Circuit Judge.

Plaintiffs-appellants appeal from a February 2002 order of the United States

District Court for the Southern District of New York (Cote, J.) denying their
motion for attorney's fees in this action brought under 42 U.S.C. 1983. The
sole issue on appeal is whether plaintiffs may be considered a "prevailing
party" under the applicable fee-shifting statute where they resolved their
dispute with defendants through a private settlement agreement over which the
district court retained enforcement jurisdiction. For reasons stated below, we
hold that on the record before us the court's retention of jurisdiction carried
sufficient judicial approval of the settlement agreement to support an award of
attorney's fees. We therefore vacate the district court's order and remand for
further proceedings.

I. Background
2

In October 1999, plaintiffs filed this 1983 class action against (1) the Mayor
of the City of New York and the Commissioner of the New York City
Department of Social Services (collectively, "City defendants"), and (2) the
Commissioner of the New York State Office of Temporary and Disability
Assistance and the Commissioner of the New York State Department of Health
(collectively, "State defendants"). In seven separate claims, plaintiffs
challenged defendants' policies regarding the disposition of applications for
food stamps, Medicaid and public assistance benefits based on
recommendations of the Eligibility Verification Review ("EVR") Offices of the
New York City Human Resources Administration ("HRA"). In June 2000, City
defendants were granted summary judgment on plaintiffs' first claim, which
alleged that the City's system for investigating joint applications for food
stamps and public assistance violated federal law.

Subsequently, plaintiffs and City defendants entered into a settlement

agreement (the "Agreement") that resolved plaintiffs' remaining six claims. In
the Agreement, City defendants denied any liability arising out of plaintiffs'
allegations but agreed to various changes in the way future benefits claims
would be handled. The district court described City defendants' obligations
under the Agreement as follows:

Those undertakings were numerous and included that they would adopt a
Medicaid determination management protocol which would require them to use
an HRA computer program to track when Medicaid determinations are required
to be made, give applicants for immediate cash grants additional written advice
about certain EVR procedures, schedule EVR office interviews the day
following receipt of certain applications, develop a log to track rescheduled
EVR interviews, modify notices sent to schedule EVR home and office visits,

computerize information reflecting a denial of benefits for a failure to provide

truthful information, revise the notices sent to applicants when their requests
for aid are denied, issue policy directives regarding a number of procedures and
carry out those policies, tabulate bi-monthly the number of applications denied
for failure to provide truthful information, adopt a method to insure that an
applicant's food stamps will not be discontinued without the appropriate notice,
modify their system for auditing compliance with the regulations concerning
immediate cash grants and food stamps, make available to plaintiffs' counsel on
a monthly basis a multitude of documents concerning the EVR process, and
appoint a contact to investigate promptly and report back to plaintiffs' counsel
in response to issues that plaintiffs' counsel may raise about compliance with
the terms of the Agreement. Most of these commitments were made for a
period of twenty-four months following the discontinuance of the action.
5

In consideration for the above promises, plaintiffs agreed to dismiss all

outstanding claims against City defendants and release them from all liability
arising out of the allegations in the complaint. The Agreement also provided
that it "shall not become effective if the Order of Discontinuance in the abovecaptioned action does not include a provision retaining jurisdiction over
enforcement." In addition, the Agreement provided, "The issue of plaintiffs'
entitlement to an award of attorneys' fees and costs and disbursements is
reserved for later determination upon application to the Court...."

In June 2001, plaintiffs submitted to the district court an order dismissing their
claims against City defendants and requested the court to sign it. 1 A copy of the
Agreement was provided to the court as part of the request. A week later, the
plaintiffs and City defendants executed a Stipulation and Order of
Discontinuance (the "dismissal Order"), which acknowledged that the parties
had entered into a settlement agreement and dismissed plaintiffs' claims with
prejudice as to City defendants.2 The dismissal Order also provided, "This
Court shall retain jurisdiction over the settlement agreement for enforcement
purposes." The Agreement, however, was not otherwise incorporated into the
dismissal Order.

In September 2001, plaintiffs moved for $140,060.25 in attorney's fees and

costs pursuant to 42 U.S.C. 1988, which provides, "In any action or
proceeding to enforce a provision of section[] ... 1983 [of this title] ... the court,
in its discretion, may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs." City defendants opposed the
motion on the grounds that (1) plaintiffs were not prevailing parties in the
underlying action and (2) even if considered prevailing parties, plaintiffs'
itemized account of fees included many non-compensable items. After

thoroughly examining the Supreme Court's recent decision 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), the district court denied plaintiffs' motion
on the ground that plaintiffs were not prevailing parties under the standard
announced by the Supreme Court in that case. This appeal followed.
II. Discussion
8

As noted above, 42 U.S.C. 1988 grants the district court explicit authority to
award attorney's fees to a "prevailing party" in an action brought under 1983.
Where, as here, an appellant contends that the district court committed an error
of law in ruling on an award of attorney's fees, we review that ruling de novo.
Baker v. Health Mgmt. Sys., Inc., 264 F.3d 144, 149 (2d Cir.2001). We have
jurisdiction over this appeal under the "collateral order" doctrine articulated in
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.
1528 (1949). See McGill v. Sec'y of Health & Hum. Servs., 712 F.2d 28, 29-30
(2d Cir.1983) (award of attorney's fees falls within the "collateral order"
doctrine).

Generally, the Supreme Court has given a "generous formulation" to the term
prevailing party, stating that plaintiffs may be entitled to attorney's fees "if they
succeed on any significant issue in litigation which achieves some of the benefit
the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433,
103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotation marks omitted).
However, the Court recently took a somewhat more restrictive approach in its
2001 Buckhannon decision.3
A. The Buckhannon Opinion

10

In October 1997, the plaintiffs in Buckhannon brought suit against the State of
West Virginia and twenty other defendants seeking declaratory and injunctive
relief. The lawsuit claimed that a provision of the West Virginia code requiring
all residents of residential board and care homes to be capable of "selfpreservation" violated federal law. 4 After the parties began discovery, the West
Virginia Legislature eliminated the self-preservation provision and the district
court dismissed the case as moot. Thereafter, plaintiffs sought attorney's fees as
a prevailing party on the ground that their lawsuit was the "catalyst" in forcing
the defendants to change the law. Although most circuit courts at the time
recognized this "catalyst theory" as one way plaintiffs could become prevailing
parties, the district court rejected plaintiffs' argument and the Fourth Circuit
affirmed.

11

In Buckhannon the Supreme Court considered whether a plaintiff could be a

prevailing party under what was termed the "catalyst theory." As described by
the Court, the catalyst theory posits that "a plaintiff is a `prevailing party' if it
achieves the desired result because the lawsuit brought about a voluntary
change in the defendant's conduct." 532 U.S. at 601, 121 S.Ct. 1835. Prior to
Buckhannon, most Courts of Appeals to have considered the issue had held that
the catalyst theory was an appropriate basis for an award of attorney's fees. The
Supreme Court disagreed.

12

Relying on the definition in Black's Law Dictionary, the Supreme Court held
that "a `prevailing party' is one who has been awarded some relief by the
court." Id. at 603, 121 S.Ct. 1835. It rejected the catalyst theory as a basis for
an award of fees because it "allows an award where there is no judicially
sanctioned change in the legal relationship of the parties" and "lacks the
necessary judicial imprimatur." Id. at 605, 121 S.Ct. 1835. Essentially, in order
to be considered a "prevailing party" after Buckhannon, a plaintiff must not only
achieve some "material alteration of the legal relationship of the parties," but
that change must also be judicially sanctioned. See N.Y. State Fed'n of Taxi
Drivers, Inc. v. Westchester County Taxi & Limousine Comm'n, 272 F.3d 154,
157 (2d Cir.2001).

13

The Buckhannon Court gave two examples of the types of relief that carry
sufficient judicial imprimatur to form the basis for awarding attorney's fees to a
plaintiff: judgments on the merits and settlement agreements that are enforced
through court-ordered consent decrees. The Court noted that a consent decree is
sufficient even without an admission of liability by the defendant because it
constitutes a "court-ordered change in the legal relationship between the
plaintiff and the defendant." 532 U.S. at 604, 121 S.Ct. 1835 (internal marks
omitted). The Court also stated in a footnote, "Private 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."
532 U.S. at 604 n. 7, 121 S.Ct. 1835 (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)).
B. District Court Decision

14

In applying Buckhannon, the district court here recognized that the Agreement
was a material change in the legal relationship between the parties, but held that
"[t]he Court's continuing jurisdiction in order to enforce the terms of the
Agreement does not ... constitute a `judicial sanctioning' of the alteration of

their legal relationship such that the plaintiffs can be considered prevailing
parties under the Buckhannon standard." The court came to this conclusion by
analyzing the differences between "the judicial role in the creation and
enforcement of a consent decree... [and] a court's role in enforcing a settlement
agreement."
15

First, when the court issues a consent decree, it has an independent

responsibility to exercise at least some minimal review of the terms of the
Agreement. In contrast, the parties in the instant case resolved their dispute
through a private agreement, and the district court stated that it "did not
scrutinize the settlement's fairness or conduct any review of the terms of the
Agreement before endorsing the stipulation dismissing the suit." Second,
although a consent decree is essentially construed as a contract, courts have
inherent power to enforce the terms of such a decree because they constitute
court orders. However, the enforcement of a settlement agreement normally
proceeds in state courts unless there is an independent basis for federal
jurisdiction. Finally, consent decrees are directly enforceable through the
contempt power of the court. Citing our decision in Hester Industries, Inc. v.
Tyson Foods, Inc., 160 F.3d 911, 916-17 (2d Cir.1998), the district court held
that contempt was not an available option in enforcing a private settlement
agreement. The court therefore held that its retention of jurisdiction over the
enforcement of the Agreement was insufficient to support an award of
attorney's fees.
C. Analysis

16

Three cases in this Circuit have stated the holding in Buckhannon in terms that
might arguably preclude recovery of attorney's fees unless a party obtains one
of the two forms of relief identified by the Supreme Court as justifying
prevailing party status, either a judgment on the merits or a court-ordered
consent decree. Union of Needletrades, Industrial & Textile Employees v. INS,
336 F.3d 200, 204-05 (2d Cir.2003) ("The [Buckhannon] Court further held that
where a plaintiff realizes the objective of its lawsuit without a court-ordered
consent decree or a judgment on the merits, a `defendant's voluntary change in
conduct ... lacks the ... judicial imprimatur' necessary to render the plaintiff a
prevailing party."); J.C., 278 F.3d at 123 ("The [Buckhannon] decision held
that, to be a prevailing party, one must either secure a judgment on the merits or
be a party to a settlement agreement that is expressly enforced by the court
through a consent decree."); Fed'n of Taxi Drivers, 272 F.3d at 158 ("In order
to be a prevailing party, the [Buckhannon] Court reasoned, a party must secure
a judgment on the merits or a settlement agreement that is enforced through a
consent decree."). However, Needletrades, J.C. and Federation of Taxi Drivers

were all catalyst theory cases. As such, there was no settlement agreement to be
enforced in any of those cases. We therefore did not fully consider the different
types of relief that might satisfy the Buckhannon court's general statement of its
holding that there must be a judicially sanctioned change in the legal
relationship of the parties.5
17

More significantly, it seems clear from even the majority opinion in

Buckhannon that the Court intended its statements about judgments on the
merits and court-ordered consent decrees as merely "examples" of the type of
judicial action that could convey prevailing party status.6 532 U.S. at 605, 121
S.Ct. 1835 ("We think, however, the `catalyst theory' falls on the other side of
the line from these examples." (emphasis added)). We therefore join the
majority of courts to have considered the issue since Buckhannon in concluding
that judicial action other than a judgment on the merits or a consent decree can
support an award of attorney's fees, so long as such action carries with it
sufficient judicial imprimatur. See Am. Disability Ass'n, Inc. v. Chmielarz, 289
F.3d 1315, 1319 (11th Cir.2002) ("[T]he district court interpreted Buckhannon
to stand for the 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."); Barrios v. Cal. Interscholastic Fed'n, 277 F.3d 1128, 1134-35
n. 5 (9th Cir.2002) ("While dictum in Buckhannon suggests that a plaintiff
`prevails' only when he or she receives a favorable judgment on the merits or
enters into a court-supervised consent decree, we are not bound by that
dictum...."); Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288
F.3d 452, 458-59 (D.C.Cir. 2002) (holding that parties' stipulation and order of
dismissal did not "meaningfully alter the legal relationship of the parties," but
implying that had there been such a change, Buckhannon would not preclude an
award of fees); 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."); Truesdell v. Philadelphia Hous. Auth., 290 F.3d 159, 165 (3d
Cir.2002) ("We do not agree with the District Court's conclusion that the
parties' settlement was an inappropriate basis for an award of attorney's fees.");
but see Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir.2003)
("Buckhannon, as indicated, makes it clear that a party prevails only if it
receives either an enforceable judgment on the merits or a consent decree.").7

18

Although the district court here took the correct general approach, its analysis
did not fully appreciate the implications of its retention of jurisdiction over
enforcement of the Agreement.8 The Supreme Court's decision in Kokkonen v.
Guardian Life Insurance of America, 511 U.S. 375, 114 S.Ct. 1673, 128
L.Ed.2d 391 (1994), cited with approval in Buckhannon, 532 U.S. at 604 n. 7,

121 S.Ct. 1835, is instructive in this regard. In Kokkonen, the Supreme Court
considered whether a federal district court had the "inherent power" to enforce
a settlement agreement that resulted in the dismissal of a case pending before
it. The Court stressed the limited jurisdiction of the federal courts stating,
"They possess only that power authorized by Constitution and statute, which is
not to be expanded by judicial decree." Id. at 377, 114 S.Ct. 1673 (citations
omitted). It held that the district court lacked ancillary jurisdiction to issue an
order enforcing the private settlement agreement, but also noted,
19

The 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 ancillary jurisdiction to enforce the
agreement would therefore exist.

20

Id. at 381, 114 S.Ct. 1673 (emphasis added).

21

Viewed in the light of Kokkonen, the district court's retention of jurisdiction in

this case is not significantly different from a consent decree and entails a level
of judicial sanction sufficient to support an award of attorney's fees. First,
despite the district court's statements that it had not specifically reviewed or
approved the terms of the settlement agreement, the district court retained
jurisdiction to enforce the Agreement. Under Kokkonen, when the district court
retained jurisdiction, it necessarily made compliance with the terms of the
agreement a part of its order so that "a breach of the agreement would be a
violation of the order." 511 U.S. at 381, 114 S.Ct. 1673. Further, because the
court has the general responsibility to ensure that its orders are fair and lawful,
it retains some responsibility over the terms of a settlement agreement as the
parties' obligation to comply with the agreement was made a part of its order.
We agree with the Fourth Circuit that: A court's responsibility to ensure that its
orders are fair and lawful stamps an agreement that is made part of an order
with judicial imprimatur, and the continuing jurisdiction involved in the court's
inherent power to protect and effectuate its decrees entails judicial oversight of
the agreement.

22

Smyth, 282 F.3d at 282. Thus, when the district court retained jurisdiction
according to the procedures approved in Kokkonen it gave judicial sanction to a
change in the legal relationship of the parties, regardless of the actual scrutiny
applied.

23

Second, while the district court was correct that courts have inherent
jurisdiction to enforce consent decrees, that jurisdiction is no different from the
jurisdictional basis in this case. Consent decrees are enforceable in federal court
because they are orders of the court; the Agreement is enforceable in federal
court because a violation of the Agreement is a violation of the court's
dismissal Order. Both are, in the terms used by the Buckhannon Court, "courtordered change[s] in the legal relationship between the plaintiff and the
defendant." 532 U.S. at 604, 121 S.Ct. 1835. Third, even if the district court
was correct that our holding in Hester precludes a court from using its contempt
power in the first instance to enforce a private settlement agreement over which
it has retained jurisdiction, we do not think this is significant enough to deprive
plaintiffs of prevailing party status.9 In the case of both consent decrees and
private settlement agreements over which a district court retains enforcement
jurisdiction, the district court has the authority to force compliance with the
terms agreed upon by the parties. In the latter instance, the court at most would
need to take an extra step by first ordering specific performance and then, if a
party does not comply, finding that party in contempt. We doubt that the
definition of "prevailing party" should turn on such a difference.

24

Our decision that the Agreement received sufficient judicial sanction to justify
considering plaintiffs prevailing parties is strengthened by the clause it contains
conditioning its effectiveness on the district court's retention of jurisdiction.
The district court's dismissal Order in this case did not, as City defendants
assert, simply preserve a federal forum in which the parties could adjudicate
disputes. It effectuated the obligations of the parties under the Agreement
because until the district court signed the dismissal Order retaining jurisdiction,
the Agreement was not yet in effect. In a very literal sense, it was the court's
order that created the change in the legal relationship between plaintiffs and
City defendants.

25

Finally, City defendants argue that plaintiffs cannot be considered prevailing

parties because judicial enforcement of the settlement agreement will not
concern the merits of the underlying lawsuit. Rather, should a dispute over the
Agreement arise, the court would simply apply state contract law to reach a
resolution. However, as the district court noted, consent decrees too are
essentially construed as contracts. EEOC v. New York Times Co., 196 F.3d 72,
78 (2d Cir.1999) ("Although consent decrees are judicial orders, they are also
agreements between parties that should be construed basically as contracts."
(internal quotation marks omitted)). Yet consent decrees clearly provide
sufficient basis for an award of attorney's fees. Buckhannon, 532 U.S. at 605,
121 S.Ct. 1835.

III. Conclusion
26

For reasons stated above, we hold that the district court's retention of
jurisdiction over the Agreement in this case provides sufficient judicial sanction
to convey prevailing party status on plaintiffs. Because the district court
erroneously concluded that plaintiffs were not prevailing parties, it did not
consider the parties' other arguments regarding what amount of plaintiffs' fee
request is fairly compensable. We therefore remand the case for the district
court to consider those and any other remaining issues.

Notes:
1

Plaintiffs' claims against the State defendants were voluntarily withdrawn

without prejudice in a separate Stipulation and Order of Dismissal. Those
claims do not form any part of this appeal

The claims were dismissed without providing notice to the putative class
members or conducting a fairness hearing because the class was never certified

Buckhannon concerned different fee-shifting provisions from those in this case.

As we have earlier noted, however, "the standards used to interpret the term
prevailing party under any given fee-shifting statute are generally applicable in
all cases in which Congress has authorized an award of fees to a prevailing
party." J.C. v. Reg'l Sch. Dist. 10, 278 F.3d 119, 123 (2d Cir.2002) (internal
quotation marks omitted) (applying Buckhannon to 1988).

More specifically, West Virginia law required that all residents of residential
board and care homes be capable of moving themselves from "situations
involving imminent danger, such as fire." See W.Va.Code 16-5H-1, 16-5H-2
(1998) (repealed 2003), W.Va. Code of State Rules, tit. 87, ser. 1, 14.07(1)
(1995)

It is worth noting that inNeedletrades we explicitly recognized that the plaintiff

never "requested that the district court order a consent decree or endorse, or
retain jurisdiction over, a settlement agreement." 336 F.3d at 206 (emphasis
added). Further, in Federation of Taxi Drivers, we held that the "essence of
being a `prevailing party' is achieving a `material alteration of the legal
relationship of the parties' that is judicially sanctioned." 272 F.3d at 158
(quoting Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835).

The Supreme Court split five to four in theBuckhannon decision. The four
dissenters would have accepted even the catalyst theory as a basis for an award

of attorney's fees.
7

The Eighth Circuit appears to be the only circuit to squarely adopt such a
narrow reading ofBuckhannon, and it did so over a vigorous and persuasive
dissent by Judge Melloy. See Christina A., 315 F.3d at 996 (Melloy, J.
dissenting) ("The Court in Buckhannon did not limit the availability of
prevailing party status to only those cases resolved through a consent decree or
final judgment on the merits. Rather, the Court set forth criteria to guide the
analysis of whether there is a judicially sanctioned, material change in the legal
relationship of the parties.").

Because the district court in this case explicitly retained jurisdiction over
enforcement of the Agreement, we need not decide whether a settlement
agreement standing alone would justify an award of attorney's fees

We also note that our holding inHester that the district court could not enforce
through its contempt power a settlement agreement that resulted in the
dismissal of a pending lawsuit is arguably distinguishable from this case. In
Hester we discussed the Supreme Court's decision in Kokkonen but concluded
that the district court had not clearly retained jurisdiction over the agreement.
160 F.3d at 917 n. 2. We did not offer an opinion on how an explicit retention
of jurisdiction would have changed the outcome of the case, if at all. It is
therefore an open question in this circuit whether a district court could enforce
an agreement through its contempt power in circumstances like those facing us
in this appeal.