                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-3698
                                  ___________

Christina A., by and through her           *
Parent and Next Friend, Jennifer A.;       *
Patricia B., by and through her Next       *
Friend, Hillary B.; Philip C., by and      *
through his Parent and Next Friend,        *
Robert C.; Shannan D., by and through      *
her Parent and Next Friend, Melissa D.;    *
Todd E., by and through his Parent and     *
Next Friend, Sandra E.; Carl F., by and    *
through his Next Friend, Hillary B.,       *
                                           *
              Appellees,                   *
                                           * Appeal from the United States
      v.                                   * District Court for the
                                           * District of South Dakota.
Jeff Bloomberg, in his official capacity *
as Secretary of the South Dakota           *
Department of Corrections; Owen            *
Spurrell, in his official capacity as      *
Superintendent of the State Training       *
School at Plankinton, South Dakota,        *
                                           *
              Appellants.                  *
                                      ___________

                            Submitted: October 11, 2002

                                 Filed: January 13, 2003
                                  ___________

Before LOKEN, BEAM, and MELLOY, Circuit Judges.
                           ___________
BEAM, Circuit Judge.

       Juvenile inmates at the South Dakota State Training School at Plankinton sued
as a class to improve conditions at the facility. The inmate class claimed that actions
of the school deprived them of their constitutional rights under both the First and
Fourteenth Amendments to the Constitution and that the procedures used violated the
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1487. At issue,
among other things, were (1) the restraint methods used by the institution's
employees, (2) the lengthy confinements to which inmates were subjected, (3) the
provision (or lack thereof) of mental health services, (4) the training of staff, (5) the
"arbitrary" method of discipline and punishment, (6) the presence of male staff
members in the female shower area, (7) the monitoring of telephone calls and visits,
and (8) the lack of special education courses for inmates who need additional
educational assistance.

       The parties notified the court that they were conducting settlement negotiations
and later presented a settlement agreement for approval. Christina A. v. Bloomberg,
No. 00-4036, slip op. at 2 (D.S.D. Dec. 13, 2000). After conducting a "fairness
hearing" pursuant to Federal Rule of Civil Procedure 23(e), id., the court approved
the settlement agreement and dismissed the action without prejudice pursuant to
Federal Rule of Civil Procedure 41(a)(2), retaining jurisdiction for the "purpose of
enforcing the Settlement Agreement." Id. at 8. Although the court explicitly
determined that the agreement was "fair, reasonable, and adequate," it incorporated
none of the specific terms and conditions agreed upon by the parties in its opinion and
order. Id.

       The class then sought an award of attorney's fees and expenses, and the district
court granted this request. The court held that the Prison Litigation Reform Act
("PLRA") did not limit the amount of attorney's fees the class could receive and that
the class was entitled to a fully compensatory fee and expense award because the


                                          -2-
settlement agreement had a positive impact on conditions at the facility, making the
class a prevailing party. The class was awarded $302,617.50 in attorney's fees and
$74,019.98 in costs and expenses, after the district court made appropriate reductions
in the fee award.1 The Secretary of the South Dakota Department of Corrections and
the Superintendent of the State Training School appeal the district court's award of
fees and costs and expenses. For the reasons stated below, we reverse.

I.    DISCUSSION

      A.     Prevailing Party Status

       "[W]e review de novo the legal question of whether a litigant is a prevailing
party." Jenkins v. Missouri, 127 F.3d 709, 713 (8th Cir. 1997). Section 1988(b) of
Title 42 of the United States Code allows the court to award reasonable attorney's fees
to the "prevailing party." In this case, the issue of whether or not the inmate class is
a prevailing party entitled to receive fees centers around a recent Supreme Court
decision, Buckhannon Board & Care Home, Inc., v. West Virginia Department of
Health and Human Resources, 532 U.S. 598 (2001). In Buckhannon, the Court held
that the "catalyst theory" of prevailing party2 status is no longer valid. Under the
"catalyst theory," a party prevails if the lawsuit brought forth "voluntary change" by
the defendant. 532 U.S. at 601. The "catalyst theory" is inappropriate for the award
of attorney's fees because "[i]t allows an award where there is no judicially sanctioned
change in the legal relationship of the parties." Id. at 605. The Court determined that


      1
        The district court reduced attorney's fees for duplicative representation of the
class at depositions and interviews, but the court did not make similar reductions in
costs and expenses for duplicative travel.
      2
        "We agree with our sister circuits that Buckhannon applies broadly to fee-
shifting statutes that employ the 'prevailing party' language." Cody v. Hillard, 304
F.3d 767, 773 n.3 (8th Cir. 2002).

                                          -3-
a legal change, rather than a voluntary change, in the relationship of the parties is
required. Id. "A defendant's voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary
judicial imprimatur on the change." Id.

       The Supreme Court specified that a judgment on the merits or a "settlement
agreement[] enforced through a consent decree" is sufficient to meet this standard.
Id. at 604. In the present case, the debate is over the status of the settlement
agreement and the court's role in enforcing it. The Court in Buckhannon stated that
"[p]rivate settlements do not entail the judicial approval and oversight involved in
consent decrees." Id. at 604 n.7. If the agreement between the inmate class and the
institution is a private settlement, then it is clear from Buckhannon that the inmate
class is not a "prevailing party" entitled to attorney's fees under 42 U.S.C. § 1988.

        We begin with an analysis of the district court's actions by way of ratification
of the settlement agreement. Rule 23(e) of the Federal Rules of Civil Procedure states
that "[a] class action shall not be dismissed or compromised without the approval of
the court." Fed. R. Civ. P. 23(e). "In approving a class settlement, the district court
must consider whether it is 'fair, reasonable, and adequate.'" Van Horn v. Trickey,
840 F.2d 604, 606 (8th Cir. 1988) (quoting Grunin v. Int'l House of Pancakes, 513
F.2d 114, 123 (8th Cir. 1975)). The district court's review of the settlement
agreement in this case essentially determined whether it was "fair, reasonable, and
adequate" and was merely an exercise in compliance with Rule 23(e). This review
fails to impose the necessary "imprimatur" on the agreement.


      A class action settlement, like an agreement resolving any other legal
      claim, is a private contract negotiated between the parties. Nevertheless,
      Rule 23(e) requires the court to intrude on that private consensual
      agreement to ensure that the agreement is not the product of fraud or
      collusion and that, taken as a whole, it is fair, adequate, and reasonable
      to all concerned.

                                          -4-
5 Moore's Federal Practice § 23.82[1] (3d ed. 2000) (emphasis added). Although
Rule 23(e) requires the district court to approve the class action agreement, it does not
require the court to establish the terms of the agreement. Therefore, the district
court's approval of the settlement agreement does not, by itself, create a consent
decree, and the inmate class did not become a prevailing party under Buckhannon by
this action of the trial court.

       The appellants concede that the settlement agreement in this case is "something
more" than a private settlement agreement because the district court retained
jurisdiction to enforce it. However, the district court's enforcement jurisdiction alone
is not enough to establish a judicial "imprimatur" on the settlement contract. The
district court indicated that, although the settlement agreement was not a formal
consent decree, "to read Buckhannon to require one particular form for resolving a
dispute in order to become a prevailing party is to read the opinion too narrowly."
Christina A. v. Bloomberg, 167 F. Supp. 2d 1094, 1098 (D.S.D. 2001). The court
went on to say that the settlement agreement served essentially the same purpose as
a formal consent decree since it changed the legal relationship between the parties by
requiring the appellants to make specific improvements to the training school and by
allowing the appellees to enforce the agreement in court. Id. at 1099.3 We disagree
with this conclusion.

       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.4 Buckhannon, 532

      3
        We do not read the district court's opinion as holding that an agreement that
falls short of the essential requirements of a consent decree is sufficient. We believe
that the court finds that the approved agreement is, indeed, some form of consent
decree.
      4
       A consent decree is defined as "[a] court decree that all parties agree to."
Black's Law Dictionary 419 (7th ed. 1999) (emphasis added).

                                          -5-
U.S. at 604. A private settlement agreement is not enough.5 While a judge has the
authority to enforce the terms of a consent decree, "noncompliance with a consent
decree is enforceable by citation for contempt of court." Local No. 93, Int'l Ass'n of
Firefighters v. City of Cleveland, 478 U.S. 501, 518 (1986).6 This court has held that
consent decrees are distinguishable from private settlements by the means of
enforcement. "[C]onsent decrees . . . are enforceable through the supervising court's
exercise of its contempt powers, and private settlements [are] enforceable only
through a new action for breach of contract." Hazen ex rel. LeGear v. Reagen, 208
F.3d 697, 699 (8th Cir. 2000) (citing Benjamin v. Jacobson, 172 F.3d 144, 157 (2d
Cir. 1999)). We are convinced that the court's dismissal order of December 13, 2000,
would not support a citation for contempt. As earlier noted, no specifically
enumerated contract terms were incorporated into the court's order. We think that
either party, if aggrieved, could institute a breach of contract action and, perhaps, in
the district court assuming, without deciding, the continuation of federal court
jurisdiction for such a case. "A voluntary dismissal without prejudice under Rule
41(a)(2) [as here] renders the proceedings a nullity and leaves the parties as if the
action had never been brought." 8 Moore's Federal Practice § 41.40[9][b] (3d ed.
1997). So, it is possible that the class could seek reinstatement of the dismissed
action under the district court's retained enforcement jurisdiction. But, the
availability of either of these potential non-contempt remedies fails to support the
conclusion that the settlement agreement serves essentially as a consent decree. See
18 U.S.C. § 3626(g)(6); Kokkonen v. Guardian Life Ins., 511 U.S. 375, 381 (1994).

      5
        The PLRA defines a "private settlement" as "an agreement entered into among
the parties that is not subject to judicial enforcement other than the reinstatement of
the civil proceeding that the agreement settled." 18 U.S.C. § 3626(g)(6). In this case,
the district court purported to retain jurisdiction over the agreement in order to
enforce its provisions against the appellants.
      6
        "There can be no question that courts have inherent power to enforce
compliance with their lawful orders through civil contempt." Shillitani v. United
States, 384 U.S. 364, 370 (1966).

                                          -6-
      B.     Prison Litigation Reform Act

       "Abuse of discretion governs review of fee awards, however, questions of law
are reviewed de novo." Lane v. United States Dep't of Agric., 294 F.3d 1001, 1003
(8th Cir. 2002) (citing Jenkins v. Missouri, 127 F.3d 709, 713 (8th Cir. 1997)). Since
our examination of the applicability of the PLRA is a question of law, we hold that
the fee-limiting provisions of the Act apply in this case. This statute, codified in part
at 42 U.S.C. § 1997e(d), places limits on the amount of attorney's fees that a court
may award a plaintiff prisoner. The provision at issue states the following:

      [i]n any action brought by a prisoner who is confined to any jail, prison,
      or other correctional facility, in which attorney's fees are authorized
      under section 1988 of this title, such fees shall not be awarded, except
      to the extent that . . . the fee was directly and reasonably incurred in
      proving an actual violation of the plaintiff's rights protected by a statute
      pursuant to which a fee may be awarded under section 1988 of this title.

42 U.S.C. § 1997e(d)(1)(A) (emphasis added).

       The district court held that the State Training School did not fall within the
definition of a "jail, prison, or other correctional facility" even though the juvenile
inmate class members fall within the definition of "prisoner" in this provision.
Christina A., 167 F. Supp. 2d at 1099. In reaching this determination, the court found
that the definition of "institution" found in 42 U.S.C. § 1997, a section that applies
to section 1997e and pre-dates the PLRA, was the appropriate definition to consider.
Id. Section 1997 defines an "institution" to include "a jail, prison, or other
correctional facility" and a facility for juveniles "adjudicated delinquent" or "in need
of supervision." 42 U.S.C. § 1997(1)(B)(ii), (iv)(III). The district court reasoned that
Congress must have intended section 1997e to apply only to adult facilities because
section 1997 explicitly refers to juvenile facilities and section 1997e does not.
Christina A., 167 F. Supp. 2d at 1099. We disagree. The statutory construction used

                                          -7-
by the district court fails to take into account the plain language of the statute.
"Although Congress did not define the phrase 'jail, prison, or other correctional
facility' . . . the plain meaning of the phrase undoubtedly encompasses juvenile
detention facilities." Alexander S. v. Boyd, 113 F.3d 1373, 1383 (4th Cir. 1997).

       Section 3626(g)(5) of Title 18 of the United States Code, another provision of
the PLRA, explicitly defines a "prison" as a "facility that incarcerates or detains
juveniles or adults." Under this definition of a "prison," the fee-limiting provision
found in 42 U.S.C. § 1997e(d)(1) would clearly encompass the State Training School.
In Alexander S., a case with facts similar to the present case, the Fourth Circuit
determined that the definition of "jail, prison, or other correctional facility" covered
the juvenile facility at issue in that case. 113 F.3d at 1383-84. The court stated that
since 18 U.S.C. § 3626(g)(5) and 42 U.S.C. § 1997e(d)(1) were enacted at the same
time as part of the PLRA, the definitions of "prison" are the same, based on the
"cardinal rule of statutory construction . . . that statutes which are originally part of
the same Act should be construed together." Id. Therefore, "jail, prison, or other
correctional facility" in 42 U.S.C. § 1997e(d)(1) encompasses juvenile facilities since
18 U.S.C. § 3626(g)(5) defines prisons to include juvenile facilities. Id. at 1384.

       The district court rejected this reasoning because the sections of the PLRA
were codified in various sections of the United States Code. "The problem with the
panel opinion in Alexander S. is its failure to take into account the structure of the
PLRA. This structure makes it unsafe to assume that a term defined in one section
of the PLRA necessarily has the same definition in another." Christina A., 167 F.
Supp. 2d at 1100. We find this reasoning unpersuasive, and we agree with the Fourth
Circuit that juvenile facilities are covered by the fee-limiting provisions of the PLRA.

      Because we have concluded that the juvenile inmate class is not entitled to
attorney's fees, we need not address whether the class was entitled to a fully



                                          -8-
compensatory award or whether the district court erred in not reducing the costs and
expenses awarded for duplicative travel by class counsel.

II.   CONCLUSION

     We reverse the district court's award of attorney's fees and costs and expenses,
and we remand for entry of judgment consistent with this opinion.

MELLOY, Dissenting

       I concur that the state training school qualifies as a correctional facility under
the Prison Litigation Reform Act. However, I dissent from that portion of the
majority's opinion which holds the plaintiff class is not a prevailing party. District
court approval of a settlement agreement and dismissal with explicit retention of
jurisdiction for the purpose of enforcing the agreement serve as the functional
equivalent of a consent decree. Accordingly, I would hold the plaintiff class to be a
prevailing party under the standard set forth Buckhannon Bd. & Care Home, Inc., v.
West Virginia Dep't of Health & Human Res., 532 U.S. 598, 604-05 (2001). This
conclusion is based, in part, on an underlying determination that the district court
enjoys explicitly retained enforcement jurisdiction under the standard set forth in
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379 (1994), and that this
jurisdiction enables the district court to issue enforcement orders regarding the
settlement agreement. See Gilbert v. Monsanto, 216 F.3d 695, 699-700 (8th Cir.
2000) (affirming a district court's ability to expressly retain jurisdiction and order the
enforcement of a settlement agreement).

       The majority reaches the opposite conclusion for two reasons. First, the
majority adopts a reading of Buckhannon that emphasizes the Court's use of the term
consent decree and minimizes reliance on the Court's generally stated concerns of
judicial approval, oversight, and enforcement jurisdiction. Second, the majority fails

                                           -9-
to acknowledge that Kokkonen expressly sanctioned the use of district court orders
as vehicles to enforce settlement agreements in cases where the district courts
explicitly retain jurisdiction to enforce the settlement agreements. I address these
issues in turn.

                                            I

       In Buckhannon, the Court rejected the catalyst theory of prevailing party status
and held that for there to be a prevailing party, there must be a "'material alteration
of the legal relationship of the parties.'" Buckhannon, 532 U.S. at 604-05 (citing
Texas St. Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)).
The Court further stated that this material alteration of the legal relationship must
carry a judicial imprimatur or judicial sanction. Id. at 605 ("We think, however, the
"catalyst theory" falls on the other side of the line from these examples. It allows an
award where there is no judicially sanctioned change in the legal relationship of the
parties.").

       As examples of the type of action that would convey the necessary judicial
imprimatur or sanction, the Court referred to settlement agreements enforced through
consent decrees and judgments on the merits. Id. at 604. As examples of the type of
actions that would not convey the necessary imprimatur, the Court referred to non-
final victories such as surviving a motion to dismiss for lack of jurisdiction or for
failure to state a claim upon which relief could be granted or receiving an
interlocutory ruling that reverses a dismissal for failure to state a claim. Id. at 604-05
(citing Hewitt v. Helms, 482 U.S. 755, 760 (1987) and Hanrahan v. Hampton, 446
U.S. 754, 760 (1980) (per curiam)). The Court rejected the argument that prevailing
party status could exist where the successful result was obtained through a private
settlement agreement. Id. at 604 and n.7.




                                          -10-
       The facts of Buckhannon provide the clearest example of the absence of a
judicial imprimatur. In Buckhannon, legislative action provided the plaintiff its
desired relief and mooted the underlying legal claims. Buckhannon, 532 U.S. at 601.
Accordingly, the Court faced a simple dismissal based on mootness following wholly
non-judicial relief. The Court did not face a purely private settlement agreement, a
settlement agreement with retained enforcement jurisdiction, or a consent decree.

       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. Id. at 604-05. 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. Id. As noted above, one of these issues is finality – success on an
interlocutory order or survival following a motion to dismiss are insufficient. The
Court also emphasized judicial approval, judicial oversight, and enforcement
jurisdiction. Id. at n. 7. In distinguishing a judicially sanctioned change from a
change that is reflected merely in a private settlement agreement, the Court stated:

      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.

Id. (citing Kokkonen, 511 U.S. at 379) (emphasis added).

       Importantly, the present case does not involve a mere private settlement
agreement. Rather, it involves a settlement agreement with equitable remedies
regarding confinement conditions and treatment options at the training school. The
district court approved this settlement agreement after a fairness hearing and




                                        -11-
explicitly retained jurisdiction to enforce the settlement agreement.7 This retention
of enforcement jurisdiction, if properly within the district court's power, guarantees
the judicial oversight required by Buckhannon. As explained below, the retention of
enforcement jurisdiction was within the district court's power. Accordingly, the
required finality, approval, oversight and jurisdiction are present, and I find no
material basis upon which to distinguish the present case from the situation we would
face if the district court had elected to use the words "consent decree" to achieve the
identical result.

                                          II

      In denying prevailing party status, the majority distinguishes settlement
agreements from consent decrees. Critical to the majority's analysis is the conclusion
that the district court is powerless to enforce a settlement agreement via an
enforcement order and that the only potential remedies are an action for breach of
contract or reinstatement of the original suit. In so concluding, the majority
underestimates the enforcement authority of the district court that accompanies the
express retention of jurisdiction.

      In Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994), the
Court held only that a district court lacked inherent authority to issue an order to
enforce a private settlement agreement. The Court stated:



      7
        The settlement agreement provides that its terms would be incorporated into
the court's order approving the settlement agreement, a breach of the settlement
agreement would be a violation of the order of dismissal, and the court would have
ancillary jurisdiction to enforce the settlement agreement. See Addendum to
Appellant's Brief at 26-27. The order approving the settlement agreement did not
explicitly incorporate the agreement into the order of dismissal but did approve the
entire settlement agreement.

                                         -12-
      The situation would have been 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 order would therefore exist.

Id. (emphasis added). The Court emphasized that the district court had not retained
authority over the agreement, "[t]he Stipulation and Order did not reserve jurisdiction
in the District Court to enforce the settlement agreement; indeed, it did not so much
as refer to the settlement agreement." Kokkonen, 511 U.S. at 377. Accordingly,
Kokkonen should not be read as a broad prohibition against a district court's retention
of jurisdiction to enforce a settlement agreement via court order. Rather,
Kokkonen should be limited to its holding – district courts lack inherent authority to
enforce settlement agreements where there is no incorporation of the agreement in the
order of dismissal or retention of enforcement jurisdiction.

       Citing Kokkonen, the Eighth Circuit has repeatedly recognized the possibility
of federal enforcement jurisdiction over a settlement agreement where the district
court approves, and expressly retains jurisdiction to enforce, the agreement. See,
e.g., Hayden Assoc., Inc., v. ATY Bldg Sys., Inc., 289 F.3d 530, 532-33 (8th Cir.
2002) (citing Kokkonen for the proposition that a settlement agreement may be made
part of a district court's order of dismissal by a provision retaining jurisdiction over
a settlement agreement, but holding specifically that the district court was without
jurisdiction because it had not explicitly retained jurisdiction over a financing
agreement that was ancillary to the settlement agreement); Sheng v. Starkey Labs,
Inc., 53 F.3d 192, 193 (8th Cir. 1995) (citing Kokkonen, but holding that a district
court's reservation of jurisdiction for "sixty (60) days to permit any party to move to
reopen th[e] action, for good cause shown" did not satisfy the general retention of
enforcement jurisdiction requirement set forth in Kokkonen); Miener v. Missouri


                                         -13-
Dept. of Mental Health, 62 F.3d 1126, 1127 (8th Cir. 1995) (citing Kokkonen, but
finding no federal enforcement jurisdiction because "[t]he settlement agreement did
not designate any court as having jurisdiction of future enforcement proceedings.").

       In at least one instance, the Eighth Circuit relied on the retained jurisdiction
prong of Kokkonen to affirm a district court order enforcing a court-approved
settlement agreement. Gilbert v. Monsanto, 216 F.3d 695, 699-700 (8th Cir. 2000).
In Gilbert, the parties reached a settlement agreement and stipulated, "[t]he
'confidential Settlement Agreement and Release' executed between the parties is
herein incorporated by reference. Furthermore, it is stipulated that the parties agree
that this Court shall retain jurisdiction to enforce the terms of the Settlement
Agreement and Release." Id. at 699. The district court in Gilbert then dismissed the
case with prejudice subject to an express retention of jurisdiction to enforce the
agreement. Upon the plaintiff's subsequent motion to enforce the agreement, the
district court learned that the defendant failed to sign the referenced agreement.
Nevertheless, the district court determined that the parties had reached an oral
settlement agreement and that, under the terms of the stipulation, there was retained
jurisdiction to enforce the oral agreement. On appeal this court affirmed the district
court's enforcement order and stated, "We hold on the record before us that the
district court did not clearly err . . . in concluding that it retained jurisdiction over the
enforcement of the settlement agreement, regardless of its form." Id. at 700
(emphasis added).

      In the present case, as in Gilbert, the settlement agreement was not merely a
private settlement agreement. Rather, the district court approved the settlement
agreement and retained jurisdiction for the purpose of enforcing the agreement.
Accordingly, the jurisdictional requirement set forth in Kokkonen is satisfied. Here,
unlike in the Hayden case, the issue of jurisdiction does not relate to a financing
agreement that is ancillary to the settlement agreement. Hayden, 289 F.3d at 532-33.
Unlike Sheng, the present case involved no limitation on the scope of the retained

                                            -14-
enforcement jurisdiction. Sheng, 53 F.3d at 195. Finally, unlike Miener, the district
court in the present case expressly acted to designate itself as the court to hold
jurisdiction over future enforcement. Miener, 62 F.3d at 1127. Because the
jurisdictional requirement is met and because the present case does not involve
merely a private settlement agreement, I can find no material basis upon which to
distinguish the present scenario from one involving a consent decree.

        The majority relies on Hazen ex rel. LeGear v. Reagen, 208 F.3d 697, 698-99
(8th Cir. 2000) to distinguish settlement agreements from consent decrees. While it
is true that the court in Hazen distinguished between federal consent decrees and
"private settlement agreements," Hazen did not involve a question of district court
authority to retain jurisdiction over a settlement agreement for the purpose of
enforcement. Id. at 699. Rather, Hazen held that a federal consent decree under the
PLRA could not be enforced in state court where the consent decree failed to conform
to the standards mandated by the PLRA. Id. Regarding district court enforcement
authority, the Court in Buckhannon clearly stated that a private settlement agreement
is distinct from a consent decree. Buckhannon, 532 U.S. 604 at n.7. This conclusion
is undisputed. Hazen goes no further than Buckhannon on this issue and should not
be extended as authority to assess the similarities between a settlement agreement
subject to retained enforcement jurisdiction and a consent decree. Such were not the
facts of Hazen.

       Finally, a finding that the plaintiff class was a prevailing party avoids a circuit
split with the Eleventh Circuit. See American Disability Ass'n, Inc., v. Chmielarz,
289 F.3d 1315, 1318-20 (11th Cir. 2002) (hereinafter "ADA, Inc.") (synthesizing
Buckhannon and Kokkonen to hold that a plaintiff was a prevailing party where the
district court approved a settlement agreement and "retained jurisdiction solely for the
purpose of enforcing the Settlement Agreement."). In a well-reasoned opinion, the
Eleventh Circuit first rejected the bright-line interpretation of Buckhannon that the
majority adopts today:

                                          -15-
      In saying that "a party is not a prevailing party for the 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 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 not 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 "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. 604, 05 . . . 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.

ADA, Inc., 289 F.3d at 1319.

        Next, the Eleventh Circuit noted that Kokkonen dispelled any lingering
concerns regarding fine distinctions between consent decrees on the one hand and
settlement agreements coupled with retained enforcement jurisdiction on the other.
Id. at 1320.

      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 dismissal or expressly retains jurisdiction to enforce a

                                         -16-
      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.

Id. (emphasis in original).

       For the reasons set forth above, I agree with the Eleventh Circuit. Because the
district court in the present case possessed jurisdiction to enforce the settlement
agreement via court order, and because the district court exercised the requisite
approval and oversight, I would hold the plaintiff class to be a prevailing party.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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