                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-3727

A YANNA W ALKER, for herself
and all others similarly situated,
                                                    Plaintiff-Appellee,
                                  v.

C ALUMET C ITY, ILLINOIS,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 07 C 6148—Milton I. Shadur, Judge.



      A RGUED M ARCH 31, 2009—D ECIDED M AY 15, 2009




  Before F LAUM, M ANION, and R OVNER, Circuit Judges.
  M ANION , Circuit Judge. Ayanna Walker wanted to sell a
dwelling she owned in Calumet City (“the City”), but she
found that a local ordinance imposed obstacles that
interfered with her ability to dispose of her property. She
sued the City, alleging that the ordinance violated her
right to procedural due process and unreasonably re-
strained the alienability of her property. After the City
stated that it would not enforce the ordinance against
2                                               No. 08-3727

Walker, the district court dismissed the case as moot.
Subsequently, the district court held that Walker was a
prevailing party and awarded her attorney fees. The
City appeals, and we reverse.


                             I.
  The City’s ordinance at issue in this case is the Point of
Sale (“POS”) ordinance, which applies whenever real
property within the city limits is sold. Under the POS
ordinance, real property cannot be sold until it is
inspected and deemed in compliance with city codes, a
fee is paid, and transfer stamps are issued. If the City’s
inspector finds any violation of the building or zoning
codes, he may require the property owner to correct the
problem before the property may be sold. The inspector
may also ascertain whether the property has been illegally
converted from a single-family home into a multi-family
dwelling unit.
  The POS ordinance was challenged in an earlier suit
brought by a local association of realtors, who claimed
that the ordinance deprived them of property without
due process. Mainstreet Org. of Realtors v. Calumet City,
505 F.3d 742, 744 (7th Cir. 2007). The district court granted
a preliminary injunction against the enforcement of the
POS ordinance. Id. On appeal, we reversed and dismissed
the suit, concluding that the association of realtors
lacked standing to bring these claims. Id. at 749.
  After oral argument in the realtors’ suit but before our
opinion was released, Ayanna Walker, a property owner
No. 08-3727                                                  3

in the City, joined as a plaintiff in the original suit. Walker
owned a multi-family dwelling unit that she intended to
sell. After our opinion in Mainstreet, the district court
dismissed the entire case without prejudice.
  Walker then sued the City using the same counsel that
had represented the association of realtors in Mainstreet. In
her amended complaint, Walker brought three claims.
First, she alleged that the POS ordinance unreasonably
restrained the alienability of her property. Second, she
claimed that the POS ordinance failed to accord her
procedural due process. Third, Walker alleged that she
was deprived of her ability to sell her property by the
application of the POS ordinance to “legal non-conforming
property,” i.e., property that does not comply with the
relevant zoning but is nonetheless deemed legal. Specifi-
cally, Walker claimed that the City refused to grant
rebuild permits for non-conforming property and that
such permits were necessary before lenders would
extend money to potential buyers. Additionally, Walker
sought to certify a class action on behalf of all property
owners in the City.
  While Walker’s complaint and class action petition were
pending, her property was inspected under the Rental
Dwelling Inspection ordinance, under which the City
annually inspects rental property for compliance with
the City’s health, zoning, and building codes. If the prop-
erty violates any of these codes, the City may require
the owner to bring the property into compliance. The
inspector identified multiple areas in Walker’s building
where repair was necessary. After Walker completed the
4                                                No. 08-3727

repairs, the City re-inspected and pronounced her
property compliant with the City’s building and zoning
codes. Subsequently, the City moved the district court to
dismiss the case as moot. The City stated that because
Walker’s property was already considered to be in com-
pliance with the City’s codes, an inspection under the
POS ordinance to check for the same violations would be
redundant. Walker argued that the case would not be
moot unless the dismissal order specifically granted her
all the relief she originally sought, because otherwise the
City could renege on its promises after dismissal. Both
parties then submitted proposed orders dismissing the
case as moot. The district court entered a dismissal order
holding that the case was moot and listing the City’s
representations supporting that conclusion.
  Following the dismissal, Walker moved for attorney
fees under § 1988 as the prevailing party. The City opposed
this motion, arguing that Walker had not achieved her
goals and that the case had become moot prior to any
judicial determination on the merits. The district court
disagreed, finding that Walker had achieved a “total
victory,” and awarded Walker $189,000 in attorney fees.
The City appeals the grant of attorney fees to Walker.


                             II.
   On appeal, the City argues that the district court erred
in awarding attorney fees to Walker under 42 U.S.C.
§ 1988(b), which states that in a § 1983 suit, “the court, in
its discretion, may allow the prevailing party . . . a reason-
able attorney’s fee as part of the costs.” Prior to 2001, this
No. 08-3727                                                 5

court commonly evaluated the awarding of attorney fees
using the “catalyst rule,” which stated that “a plaintiff
may be a prevailing party for purposes of section 1988
even if the defendant voluntarily provides the relief
sought rather than litigating the suit to judgment.” Zinn v.
Shalala, 35 F.3d 273, 274 (7th Cir. 1994). However, the
United States Supreme Court rejected the catalyst rule
in Buckhannon Board & Care Home, Inc. v. West Virginia
Department of Health & Human Resources, 532 U.S. 598
(2001). Buckhannon “emphasized that in order to be
deemed a prevailing party, there must be a ‘material
alteration in the legal relationship of the parties.’” Bingham
v. New Berlin Sch. Dist., 550 F.3d 601, 603 (7th Cir. 2008)
(quoting Buckhannon, 532 U.S. at 606). This alteration
must arise from a court order. Southworth v. Bd. of Regents,
376 F.3d 757, 771 (7th Cir. 2004). In other words, “there
must be a judicial imprimatur on the change.” Zessar v.
Keith, 536 F.3d 788, 796 (7th Cir. 2008).
  In Buckhannon, the Supreme Court gave two examples of
when a party should be considered prevailing: first, when
“the plaintiff has received a judgment on the merits”;
second, when the plaintiff has “obtained a court-ordered
consent decree.” Buckhannon, 532 U.S. at 605. In general,
we have stated that “[i]t could not be clearer that a volun-
tary settlement by the defendant . . . does not entitle a
plaintiff to attorneys’ fees.” Bingham, 550 F.3d at 603.
  Here, the dismissal order stated:
    3. The Court bases its decision that Walker’s claim
    are [sic] moot on the following representations made
    by City: (a) because Walker has already submitted
6                                                No. 08-3727

    the property located at 521-23 Greenbay Avenue (the
    “Subject Property”) to an annual inspection under
    the City’s Rental Dwelling Inspection Ordinance, and
    has corrected all identified Code violations in accor-
    dance with the terms thereof, Walker does not need
    to pass a redundant point-of-sale inspection in order
    for her to sell the Subject Property; (b) City will not
    otherwise enforce its Point of Sale Inspection Ordi-
    nance (other than the payment of the transfer tax
    itself) as to the Subject Property; (c) City will issue
    transfer stamps and/or a Certificate of Compliance
    upon payment of the transfer tax in connection with
    the transfer of the Subject Property; and (d) City
    has certified that the Subject Property is a legal
    nonconforming use under City’s Zoning Ordinance,
    a status which runs with the land, and is subject to
    loss or elimination only for the reasons set forth in
    Section V of the Calumet City Zoning Ordinance
    “Nonconforming Buildings and Uses,” as that Ordi-
    nance currently exists.
The district court then stated that “[b]ased on the represen-
tations made by City, . . . the Court finds that Walker’s
claims in this action are moot.” The dismissal order
further stated that “the City . . . shall cause a copy of this
Order to be recorded in the Office of the Cook County
Recorder of Deeds . . . .”
  This case does not fit within the first category enunciated
in Buckhannon, namely where “the plaintiff has received
a judgment on the merits.” 532 U.S. at 605. We have
permitted attorney fees when a case has been declared
No. 08-3727                                                7

moot if, prior to the change in circumstances, the court
made a decision on the merits in favor of the plaintiff.
See, e.g., Palmetto Props., Inc. v. County of Dupage, 375
F.3d 542 (7th Cir. 2004). Here, the district court never
reached the merits of Walker’s claim. See Belda v. Marshall,
416 F.3d 618, 620 (7th Cir. 2005) (declining to decide
case on the merits when it was moot). The court never
decided whether the POS ordinance unreasonably re-
strained the alienability of Walker’s property or violated
her procedural due process rights, or whether a due
process violation arose from the potential deeming of her
property as “illegally nonconforming.” Accordingly, be-
cause no judgment was rendered by the district court on
the merits of her claims, Walker is not a prevailing
party under the first example given in Buckhannon.
  Second, Buckhannon stated that a plaintiff may be
deemed prevailing if he “obtained a court-ordered
consent decree.” 532 U.S. at 605. Walker did not obtain a
consent decree in this case; hence, the second
Buckhannon example does not apply.
  Although Buckhannon only refers to two types of out-
comes that will give rise to prevailing party status, we
have also hypothesized that “some settlement agree-
ments, even though not explicitly labeled as a ‘consent
decree’ may confer ‘prevailing party’ status, if they are
sufficiently analogous to a consent decree.” T.D. v. La
Grange Sch. Dist. No. 102, 349 F.3d 469, 478 (7th Cir. 2003).
T.D. suggested that such a settlement agreement might
arise if the settlement “(1) contained mandatory language,
(2) was entitled ‘Order,’ (3) bore the signature of the
8                                                    No. 08-3727

District Court judge, not the parties’ counsel, and
(4) provided for judicial enforcement.” Id. at 478-79.1
However, this case does not involve a settlement at all.
Instead, the suit was deemed moot based on voluntary
actions by the City. Accordingly, the exception noted
in T.D. does not apply.
  In an attempt to make the possible T.D. exception
relevant, Walker likens this case to a settlement by
pointing out the specificity of the City’s representations in
the dismissal order, the fact that the City’s original pro-


1
  Citing T.D., later cases of this circuit have opined that “a
settlement short of a consent decree may qualify if, for instance,
the terms of the settlement were incorporated into the
dismissal order and the order was signed by the court rather
than the parties, or the order provided that the court would
retain jurisdiction to enforce the terms of the settlement.”
Petersen v. Gibson, 372 F.3d 862, 866-67 (7th Cir. 2004). See also
Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 655 (7th Cir.
2007) (citing Petersen). Because T.D. required all four criteria to
be met before a party would be considered prevailing, Petersen
and Gautreaux appear to be in some tension with T.D. However,
the statements in both Petersen and Gautreaux were dicta. In
Petersen, there was no court order at all; moreover, Petersen
specifically eschewed establishing a new test, saying that “[w]e
need not concern ourselves here with the precise boundaries
between a settlement that meets the prevailing party definition
and one that falls short.” 372 F.3d at 867. In Gautreaux, the
parties had entered a consent decree and attorney fees had been
awarded after the court enforced and modified the decree. 491
F.3d at 652-54. Hence, the legal effect of settlements that
functioned similarly to consent decrees was not at issue.
No. 08-3727                                                   9

posed order was rejected by the district court, and the
fact that the dismissal order enshrines the representations
made by the City that led to a finding of mootness. How-
ever, even supposing the events in the district court could
be considered a “settlement,” Walker’s argument fails
because the dismissal order does not meet all four
criteria delineated in T.D. Although the order was
entitled a “final dismissal order” and was signed by the
district court judge, it did not provide for judicial en-
forcement. Rather, the order noted that Walker could
bring a motion for attorney fees but gave no option for
Walker to seek enforcement of its provisions and did not
vest the court with continuing jurisdiction. 2 Moreover,
the order did not contain mandatory language that
would convert the dismissal order into an effective
consent decree. Instead, the order listed and accepted the
representations made by the City. At most, the order
stated that the City “shall cause a copy of this Order to be
recorded,” but in context that order is a mere ministerial
duty imposed on the City. Even if this requirement had
not been included, the case would have been moot be-



2
   Walker argues that she could have successfully sought a
contempt order against the City if it reneged on its representa-
tions to the district court. However, we have stated that in
order for a party to be held in contempt, “he must have vio-
lated an order that sets forth in specific detail an unequivocal
command from the court.” Pearle Vision, Inc. v. Romm, 541 F.3d
751, 757 (7th Cir. 2008). Here, there was no command from the
district court. Instead, the district court’s order listed and
accepted the representations of the City.
10                                             No. 08-3727

cause the City did not intend to enforce the POS ordinance
against Walker. She wanted to sell and the City agreed not
to apply the POS because the requirements had already
been met.
  To show that she obtained permanent relief by the
district court’s order, and thereby obtained a judgment on
the merits, Walker asserts that, under the dismissal order,
the City “is forever barred from requiring a point-of-sale
inspection of the property before its sale and is thus
forever barred from requiring [Walker], or any subsequent
owner, to make repairs to the property as a condition of
the right to sell it.” However, Walker mischaracterizes
the dismissal order. The order merely states that Walker’s
property has already been inspected and thus the
POS ordinance will not be enforced and transfer stamps
will be issued when Walker pays the pertinent fees.
Nowhere does the order state that later owners will not be
subject to the ordinance. Moreover, even the legal non-
conforming status is subject to change, because the order
specifically notes that the status “is subject to loss or
elimination” for violations of specified city ordinances.
Although the dismissal order states that the “legal non-
conforming status” will “run with the land,” viewed in
context this statement indicates solely that, under the
present City ordinances, the property is being used law-
fully. Should the property no longer conform to the
specified ordinances, that status may be revoked. Accord-
ingly, contrary to Walker’s position the order does not
grant Walker and her assigns permanent relief from
the application of the POS ordinance.
No. 08-3727                                                     11

  Walker also relies on DiLaura v. Township of Ann Arbor,
471 F.3d 666 (6th Cir. 2006), to support her claim for
attorney fees. In DiLaura, the Sixth Circuit affirmed the
grant of attorney fees for a plaintiff after the defendant
township had voluntarily agreed not to enforce an ordi-
nance against the plaintiff. However, DiLaura is distin-
guishable. In that case, the district court held that the
case was not moot, reached the merits, and granted the
plaintiff summary judgment. Id. at 669. Here, the
district court never addressed the merits of Walker’s
suit. Accordingly, DiLaura does not support the award
of attorney fees to Walker.3
  Walker also relies on the district court’s interpretation
of its dismissal order. After entering the dismissal order,
the district court opined that Walker had achieved a
total victory on her claims and noted that the City’s
proposed mootness order had not been entered. We
have seen that the dismissal order merely acknowledged
that Walker did not need to submit to another inspection
and stated that Walker would be issued the transfer
stamps to sell her property if she paid the fees. Accord-


3
  In a supplemental filing, Walker also cites Biodiversity Conser-
vation Alliance v. Stem, 519 F.3d 1226, 1230 (10th Cir. 2008)
(O’Connor, J.), which stated that “in order for a party to
prevail, the court’s statement must lend judicial teeth to the
merits of the case.” However, Biodiversity further held that a
court’s conditional order finding the controversy to be moot
did not give rise to prevailing party status. Id. at 1230-31. Thus,
Biodiversity actually supports our conclusion that Walker is
not a prevailing party.
12                                           No. 08-3727

ingly, Walker did not achieve a total victory and did not
bind the City into perpetuity with regard to the
property once it sold.


                           III.
  As a property owner who wanted to sell property
located in the City, Walker had standing to challenge the
inspection requirements of the POS. In the meantime,
however, she complied with all of those requirements by
remedying the code violations identified in the City’s
annual inspection of rental properties. This effectively
mooted her challenge against the POS ordinance. The
dismissal of the case for mootness did not impose a
judicial imprimatur that would permit awarding attorney
fees under Buckhannon. There was no final judgment on
the merits in Walker’s favor and no consent decree was
entered. Accordingly, the judgment of the district
court awarding attorney fees to Walker is R EVERSED.




                         5-15-09
