                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2586
                                   ___________

Bill M., by and through his father and *
natural guardian, William M., and on   *
behalf of themselves and all other     *
persons similarly situated; John Doe,  *
by and through his mother and natural  *
guardian, Jane Doe, and on behalf of   *
themselves and all other persons       *
similarly situated; Heather V., by and *
through her mother and guardian,       *
Marcia V., and on behalf of themselves *
and all other persons similarly situated;
                                       *
Jane S., by and through her mother and *    Appeal from the United States
natural guardian, Patricia S.; Kevin V.,
                                       *    District Court for the
by and through his mother and legal    *    District of Nebraska.
guardian, Kathy V.; Jennifer T., by and*
through her parents and legal guardians,
                                       *
Sharon and Greg T.; Leslie H.;         *
Catherine M.; Stephanie B.; Conrad J., *
by and through his legal guardian,     *
C.W.J.; Christopher H., by and through *
his legal guardian, Sue H.; Michael R.,*
                                       *
             Appellants,               *
                                       *
       v.                              *
                                       *
Nebraska Department of Health and      *
Human Services Finance and Support; *
Nebraska Department of Health and      *
Human Services; Richard Nelson, in his *
official capacity as the Director of   *
Nebraska Department of Health and      *
Human Services Finance and Support;      *
Nancy Montanez, in her official          *
capacity as the Director of Nebraska     *
Department of Health and Human           *
Services,                                *
                                         *
             Appellees.                  *
                                    ___________

                              Submitted: March 9, 2009
                                 Filed: July 2, 2009
                                  ___________

Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

       The appellants, a group of developmentally disabled Nebraska residents, filed
an action in the district court1 against several Nebraska state agencies and officials,
alleging violations of federal law. The case was settled, and the central question on
appeal is whether each of the plaintiffs was a “prevailing party” in the action, such
that the plaintiffs were entitled to attorneys’ fees. The district court held that they
were not prevailing parties and denied their application for fees. We affirm.

                                           I.

       In 2003, Bill M. and other developmentally disabled Nebraska residents
(collectively, “the plaintiffs”) filed suit against the Nebraska Department of Health
and Human Services Finance and Support, the Nebraska Department of Health and
Human Services, and two department directors in their official capacities (collectively,

      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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“the State”). The plaintiffs’ second amended complaint sought declaratory and
injunctive relief for alleged violations of the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq.; section 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794; federal Medicaid statutes, 42 U.S.C. § 1396 et seq., and regulations,
e.g., 42 C.F.R. § 440.230(b); and the Due Process Clause of the Fourteenth
Amendment. The gravamen of their complaint was that the State unlawfully provided
inadequate funding for developmental-disability services, thereby raising the risk that
the plaintiffs and others similarly situated would be placed in institutional (as opposed
to “less restrictive” residential or community) settings.

       In February 2008, the parties advised the district court that they had reached an
oral settlement agreement. The district court gave the parties thirty days to reduce
their agreement to writing and to file a joint stipulation for dismissal. Unable to meet
that deadline, the parties moved for an extension of time, and the court granted an
additional thirty days, until April 2, 2008, to make the necessary filing. The court
warned, however, that “no further extensions will be granted, and that in the event of
noncompliance with [the new deadline], this action may be dismissed without further
notice.”

       The parties executed a written settlement agreement on March 31, 2008. As
part of the settlement, the State agreed to convene “workgroups” to study issues
relating to the State’s system of providing services to the developmentally disabled.
The State also agreed to implement new procedures for handling requests for such
services. For their part, the plaintiffs agreed to dismiss their claims with prejudice,
provided that the district court retained jurisdiction to decide the issue of attorneys’
fees.

      On April 2, 2008, the parties timely filed a joint motion and stipulation for
“approval” of the settlement. In a memorandum and order, the district court advised



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the parties that it was “willing to grant the motion and ‘approve’ the stipulation and
related settlement agreement with the following understanding”:

      (1)    I make no determination that the settlement agreement is good or
             bad or fair or unfair.

      (2)    With the exception that I will resolve the attorney fee question as
             contemplated by the settlement agreement, I retain no jurisdiction
             to enforce or construe the settlement agreement in the future.
             Furthermore, my “approval” of the settlement agreement does not
             suggest that there would later be federal jurisdiction to construe or
             enforce the terms of the settlement agreement. In other words, the
             settlement agreement is merely a contract between the parties and
             my “approval” of it confers no other status.

      (3)    Plaintiffs’ counsel will be understood to have represented to me
             that each person signing the settlement agreement for a disabled
             person has the authority to do so.

       The district court asked the parties whether, having reviewed its memorandum
and order, they still requested that it grant their joint motion and stipulation for
“approval” of the settlement. Both parties certified that they did, and the court granted
their motion, subject to the above understanding. The court then dismissed the
entirety of the case with prejudice, except for the issue of attorneys’ fees, which it
retained jurisdiction to resolve.

       The plaintiffs applied for attorneys’ fees under the ADA, 42 U.S.C. § 12205;
the Rehabilitation Act, 29 U.S.C. § 794a(b); and the Civil Rights Attorney’s Fees
Awards Act of 1976, 42 U.S.C. § 1988(b). The district court denied the plaintiffs’
application on the ground that they were not prevailing parties, and thus not eligible
for fees under those statutes. This appeal followed.




                                          -4-
                                           II.

       The plaintiffs argue that the district court erred in denying their application for
attorneys’ fees. They contend that they “prevailed” in the underlying action, because
the settlement they reached with the State provided some of the relief that they sought.
As prevailing parties, the plaintiffs contend, they are entitled to attorneys’ fees under
the applicable federal fee-shifting statutes. We review de novo the legal question
whether a litigant is a “prevailing party.” Christina A. ex rel. Jennifer A. v.
Bloomberg, 315 F.3d 990, 992 (8th Cir. 2003).

       In Buckhannon Board & Care Home, Inc. v. West Virginia Department of
Health & Human Resources, 532 U.S. 598 (2001), the Supreme Court concluded that
a “prevailing party” is one that obtains a judicially sanctioned, material alteration of
the legal relationship of the parties. Id. at 604-05.2 Thus, a party that secures an
enforceable judgment on the merits or a court-ordered consent decree is a “prevailing
party.” Id. at 604. By contrast, the Court implied, a party that obtains a mere private
settlement does not qualify, because “[p]rivate settlements do not entail the judicial
approval and oversight involved in consent decrees.” Id. at 604 n.7. Indeed, the Court
noted, “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.

      The plaintiffs here reached a settlement agreement with the State. The district
court did not make any determination as to whether the settlement agreement was
“good or bad or fair or unfair.” Nor did the district court incorporate the terms of the
agreement into its order of dismissal, or otherwise retain jurisdiction “to enforce or

      2
        Although the plaintiffs request attorneys’ fees under a number of federal fee-
shifting statutes, some of which were not at issue in Buckhannon, we interpret the
statutes consistently. Buckhannon, 532 U.S. at 603 n.4; Cody v. Hillard, 304 F.3d
767, 773 n.3 (8th Cir. 2002).
                                           -5-
construe the settlement agreement in the future.” As a result, the parties’ settlement
does not entail the “judicial approval and oversight,” id., required for a “judicially
sanctioned change in the legal relationship of the parties.” Id. at 605. Because the
parties’ settlement “lacks the necessary judicial imprimatur” to confer upon the
plaintiffs “prevailing party” status, id., the district court properly denied the plaintiffs’
request for attorneys’ fees under the applicable federal fee-shifting statutes.

       The plaintiffs contend that they had no choice but to agree that the district court
would not retain jurisdiction to enforce or construe the settlement agreement, because
the court threatened to dismiss the case if a written settlement was not finalized.
According to the plaintiffs, it was improper for the court essentially to rewrite the
terms of the parties’ agreement. The implication is that if the terms had remained
unaltered, then the court would have retained jurisdiction over the agreement, and the
plaintiffs would have been in a better position to claim status as prevailing parties.

       Leaving aside whether the plaintiffs’ status would have been any different, see
Christina A., 315 F.3d at 993 (concluding that “the district court’s enforcement
jurisdiction alone is not enough to establish a judicial ‘imprimatur’ on the settlement
contract” where the court does not have contempt power), we see no merit to their
contention that they were forced to agree that the district court would not retain
jurisdiction over the agreement. To be sure, the court informed the parties that the
action could be dismissed without further notice if they failed to meet the extended
deadline for reducing their agreement to writing and filing a joint stipulation for
dismissal. This caution, however, was an appropriate means to enforce the court’s
deadline and keep the proceedings moving. In its subsequent memorandum and order
setting forth its conditions for granting the parties’ motion for “approval” of the
settlement, the court gave both parties the option of requesting that it deny the motion
if they found the conditions unacceptable. The plaintiffs could have chosen to reject
the settlement agreement and proceed with the litigation. If the court dismissed the
case simply because the plaintiffs declined to agree to the settlement, then the

                                            -6-
plaintiffs would have been free to appeal and challenge the adequacy of the court’s
reason for dismissing the case. We are thus unpersuaded that the plaintiffs had no
choice but to sign a settlement agreement over which the district court declined to
retain jurisdiction.

      For these reasons, the judgment of the district court is affirmed.
                      ______________________________




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