                       NOT RECOMMENDED FOR PUBLICATION
                              File Name: 06a0758n.06
                               Filed: October 12, 2006

                                           No. 05-2057

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


DONNA MCCUISTON, RICK MIAZGA, AVA
MILLER,

       Plaintiffs-Appellants,

               v.                                                  On Appeal from the United
                                                                   States District Court for the
JAMES P. HOFFA, JR.; C. B. CONDER, aka “Doc”                       Eastern District of Michigan
Condor; INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AFL-CIO, a Labor Organization,

       Defendants-Appellees.




                                                             /

Before:        GUY, SUTTON, and ALARCÓN * , Circuit Judges.


       RALPH B. GUY, JR., Circuit Judge.              Plaintiffs Donna McCuiston, Rick Miazga,

and Ava Miller appeal from the denial of their motion seeking $159,225.23 in attorney fees

and costs following entry of a Stipulated Consent Judgment declaring that plaintiffs “shall

have the right to observe the counting of ballots on any future referenda approving a contract

in which [p]laintiffs are eligible to vote.” This action, brought by local union members, arose




       *
          The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
No. 05-2057                                                                                    2

out of the alleged miscounting of ballots in the July 2003 referendum on the renegotiated

Michigan Office Workers Supplemental Agreement (Michigan Supplement). Plaintiffs sued

the International Brotherhood of Teamsters (IBT), IBT President James P. Hoffa, Jr., and

IBT Carhaul Director C.B. Conder, alleging violation of equal voting rights under the Labor-

Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. § 411(a)(1); breach of the

IBT constitution in violation of the Labor Management Relations Act (LMRA), 29 U.S.C.

§ 185; and breach of the duty of fair representation in violation of the National Labor

Relations Act (NLRA), 29 U.S.C. § 159(a).

       There being no applicable fee-shifting statute, plaintiffs’ request for attorney fees and

costs was made under the “common benefit” exception to the general rule disfavoring the

allowance of attorney fees to prevailing parties. Aleyska Pipeline Serv. Co. v. Wilderness

Soc’y., 421 U.S. 240, 257-58 (1975) (discussing exceptions to American Rule). The common

benefit theory has been applied to claims arising under Title I of the LMRDA. Hall v. Cole,

412 U.S. 1, 5 (1973); Argentine v. United Steelworkers of Am., 287 F.3d 476, 489 (6th Cir.

2002). Although defendants contested whether plaintiffs were “prevailing” and whether

there was a “common benefit,” the district court did not reach those issues and neither do we.

       Instead, the issue before us is whether the district court erred in finding that the

plaintiffs waived their claim for attorney fees by agreeing in the Stipulated Consent Judgment

that: “This is a final order of the court, disposing of all remaining claims in this action.” The

district court found that this language, drafted by the judge himself during a settlement

conference and stipulated to by counsel, was intended as a “settlement in full” of all
No. 05-2057                                                                                  3

claims—including any claim to attorney fees. McCuiston v. Conder, 385 F. Supp. 2d 617

(E.D. Mich. 2005). After review of the record and the arguments presented on appeal, we

affirm.

                                              I.

          The Teamsters’ collective bargaining agreement (CBA) consists of a national master

agreement along with the various supplemental agreements that must each be ratified before

the CBA may be implemented. The 2003 negotiations resulted in a three-year National

Master Automobile Transporters Agreement (NMATA) and a series of supplemental

agreements, one of which was the 2003 Michigan Office Workers Supplemental Agreement

(Michigan Supplement). When the referenda were held by mail in June 2003, the NMATA

and all of the supplemental agreements were ratified except for the Michigan Supplement.

The Michigan Supplement was promptly renegotiated by the IBT and submitted to the local

members, 16 in all, who were eligible to vote. Conder directed that the four affected local

unions hold meetings with eligible voters to be followed immediately by an “in person”

secret ballot. The ballots and a list of voters were to be shipped by overnight delivery to the

IBT Carhaul Division. At least one local union counted the votes before sending the ballots

to Washington D.C., and at least one other local, Local 299, did not.

          On August 1, 2003, the IBT announced that the NMATA and each of the

supplemental agreements had been ratified and that the new CBA was therefore in effect.

James DeHaan, hired by the IBT as an independent election supervisor, certified that the

Michigan Supplement had passed by a vote of eight to six. It turned out that the wrong
No. 05-2057                                                                                          4

results were attached to the certification letter signed by DeHaan, and that DeHaan would

later admit that he had no personal knowledge concerning the counting of the votes on the

renegotiated Michigan Supplement. Plaintiffs concluded, after talking with other local union

members, that the renegotiated supplement had actually been defeated. When internal union

complaints produced no results, plaintiffs commenced this action in January 2004.

       Defendants’ several motions to dismiss were denied in orders entered in April, June,

and September 2004. In early 2005, the district court granted in part and denied in part the

defendants’ motion for summary judgment. Although the correctness of those rulings is not

before us, they set the stage for the settlement conference that followed. In particular, the

district court found that plaintiffs had standing to seek injunctive relief with respect to all

future referenda on which they were eligible to vote; but that plaintiffs could not recover

compensatory damages because they were too speculative.

       With respect to the alleged miscounting of votes, plaintiffs presented the sworn

declarations of several union members attesting that they had voted “no” on the renegotiated

supplement. Finding that those votes would have been sufficient to change the outcome of

the referendum, there was a question of fact whether the Michigan Supplement was approved

and therefore whether plaintiffs were injured by a miscount that bound them to an improperly

ratified three-year contract.1 Summary judgment was granted on the claims against Hoffa

personally, but denied with respect to the claims against Conder and the IBT.

       With the case postured for trial, the district court scheduled a settlement conference

       1
          There seems to be no dispute that plaintiffs could not undo the 2003 CBA even if they were to
prevail in this case.
No. 05-2057                                                                                    5

and required that representatives with full authority to settle be in attendance. By all

accounts, the district judge actively participated in the settlement discussions, determined that

there was agreement, and drafted the two-sentence Stipulated Consent Judgment for approval

of counsel. There is no dispute that the issue of attorney fees was not specifically discussed

during the settlement conference. Nor was the issue of attorney fees the subject of any prior

discussions or demands. The Stipulated Consent Judgment, executed and filed the same day,

stated in full:

              Upon stipulation of all parties, the Plaintiffs in this case, Donna
       McCuiston, Rick Miazga, and Ava Miller, shall have the right to observe the
       counting of ballots on any future referenda approving a contract in which
       Plaintiffs are eligible to vote.

               This is a final order of the court, disposing of all remaining claims in
       this action.

                  IT IS SO ORDERED.

       Two weeks later, plaintiffs filed their motion seeking a total of $159,225.23 in

attorney fees and costs. Defendants opposed the request on various grounds, including

waiver, and plaintiffs filed a reply. Plaintiffs represented at that time that their attorney had

intentionally “refrained” from mentioning the issue of attorney fees during the settlement

conference. Defendants argued that before agreeing to settle their counsel had asked if the

settlement would be “it,” meaning the end of the litigation, and was led to believe that it

would. The district court found, for the reasons set forth in the order entered on July 8, 2005,

that the comprehensive language in the Stipulated Consent Judgment demonstrated the

parties’ intention to reach a settlement in full of all claims—including any claim to attorney
No. 05-2057                                                                                   6

fees. Plaintiffs’ motion was denied, and this appeal followed.

                                              II.

       A consent judgment is a hybrid that is both a voluntary settlement agreement fully

effective without judicial intervention, and a final judicial order that places the authority of

the court behind the parties’ compromise. Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d

1141, 1148 (6th Cir. 1992). The consent judgment must be interpreted as a contractual

agreement, albeit one that may be enforced or modified by the court. United States v. ITT

Cont’l Baking Co., 420 U.S. 223, 236-37 (1975).

       Interpretation of a consent judgment is a question of law subject to de novo review,

while the underlying factual findings are reviewed for clear error. Sault Ste. Marie Tribe of

Chippewa Indians v. Engler, 146 F.3d 367, 371 (6th Cir. 1998). When reviewing the

interpretation of a consent judgment by the same judge who crafted it, however, our review

is more accurately described as “deferential de novo.” Id. This is because few persons are

in a better position to understand the meaning of the consent judgment than the district judge

who oversaw the settlement discussions and drafted the language stipulated to by the parties.

Id. at 371-72.

A.     Importance of Fee Shifting

       Plaintiffs begin with an impassioned argument about the importance of attorney-fee

awards to the enforcement of union democracy laws. Plaintiffs explain that such cases can

be time consuming and expensive to prosecute; typically involve equitable relief, or damages

that are rarely substantial; and tend to be brought on behalf of individual union members with
No. 05-2057                                                                                  7

limited financial resources. To be sure, plaintiffs illustrate the significance of fee-shifting

to claims brought under the LMRDA and point to some of the same reasons that led the

Supreme Court to find that allowing an award of attorney fees under the common benefit

theory would be consistent with the purposes of the LMRDA. Hall v. Cole, 412 U.S. 1, 13

(1973). At the same time, unlike the statutory fee-shifting provisions of 42 U.S.C. § 1988,

the authority to award fees under Hall arises under the equitable power of the courts to

rectify the inequity of allowing other union members to share in a common benefit without

sharing in the cost of attaining it. Id. at 6.

       More importantly, to the extent plaintiffs are suggesting that these interests militate

against waiver, the Supreme Court has held that even a prevailing civil rights plaintiff’s

eligibility for attorney fees under § 1988 may be waived in a settlement of the entire action.

Evans v. Jeff D., 475 U.S. 717, 731-38 (1986); id. at 731-32 (“while it is undoubtably true

that Congress expected fee shifting to attract competent counsel to represent citizens

deprived of their civil rights, it neither bestowed fee awards upon attorneys nor rendered

them nonwaivable or nonnegotiable”). Similarly, the asserted importance of fee-shifting to

the enforcement of union democracy laws does not prevent plaintiffs from waiving the right

to seek attorney fees under Hall.

B.     Express Waiver

       Analogizing a fee request under Hall to a petition for fees under § 1988, plaintiffs

would have us follow the lead of other circuits that have placed the burden on defendants

opposing a fee request to prove that the parties intended to release or waive a claim to fees
No. 05-2057                                                                                 8

under § 1988. Some courts have held, in the interest of furthering the purposes of § 1988,

that a defendant must negotiate an express waiver of the right to seek attorney fees under §

1988. See, e.g., Ellis v. Univ. of Kansas Med. Ctr., 163 F.3d 1186, 1200-01 (10 Cir. 1998);

Muckleshoot Tribe v. Puget Sound Power & Light Co., 875 F.2d 695, 698 (9th Cir. 1989)

(waiver may be established by clear language in settlement or, if ambiguous, from the

surrounding circumstances). Other courts, taking a contrary position, have required that the

plaintiff reserve the right to seek an award of fees. See, e.g., Wray v. Clarke, 151 F.3d 807,

809 (8th Cir. 1998); Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986); Young v. Powell, 729

F.2d 563, 567 n.3 (8th Cir. 1984) (“If a settlement does not resolve all issues in a case, the

parties should not stipulate to a dismissal without reserving the unresolved issues or in some

appropriate way indicating their intent as to such issues.”). This court has not taken either

approach.

       In fact, in Jennings v. Metropolitan Government of Nashville, this court specifically

rejected an approach that centered on the question of whether the parties had reached an

explicit agreement on the issue of attorney fees. 715 F.2d 1111 (6th Cir. 1983). This court

explained:

              The question more properly before the District Court was whether the
       parties intended the settlement to be a final disposition of all claims, rather
       than whether the parties intended to include attorneys’ fees in the settlement.
       The distinction is important since it is not necessary for the parties to have
       reached a separate agreement on each aspect of the claim in order to have
       reached a settlement in full. With respect to whether the parties intended the
       settlement to dispose of all claims, the silence of the parties regarding
       attorneys’ fees is not controlling.

Id. at 1114; see also Toth v. UAW, 743 F.2d 398, 406-07 (6th Cir. 1984) (full and complete
No. 05-2057                                                                                        9

settlement of all claims included any request for attorney fees even though the issue of

attorney fees was not specifically mentioned). In this case, the district court properly

recognized that the dispositive issue was whether the parties intended their settlement to be

a final disposition of all claims.

C.     Consent Judgment versus Settlement Agreement

       Plaintiffs argue that because the settlement was formalized in a consent judgment, as

opposed to a settlement agreement, the language stipulating that it was a “final order of the

court, disposing of all remaining claims” did not encompass their “collateral” claim for

attorney fees. Plaintiffs assert that this language has a specialized (and different) meaning

in the context of a consent judgment because settlement agreements do not implicate the

same concerns about finality as consent judgments. As we see it, the question is simply

whether the parties intended their settlement, however formalized, to leave the claim for

attorney fees unresolved or to constitute a settlement in full.

       It is true, as plaintiffs observe, that a request for attorney fees presents collateral issues

that are “not inherently or necessarily subsumed by a decision on the merits.” White v. N. H.

Dep’t of Employment Sec., 455 U.S. 445, 451 n.13 (1982). As a result, a decision on the

merits will be “final” for purposes of appeal whether or not a request for attorney fees

remains for adjudication. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202-03 (1988).

Thus, a voluntary dismissal under Fed. R. Civ. P. 41(a) does not deprive the court of

jurisdiction to consider the imposition of sanctions, costs, or attorney fees. Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 393-94 (1990); Brown v. Local 58 Intern. Bhd. of Elec.
No. 05-2057                                                                                             10

Workers, 76 F.3d 762, 766-67 (6th Cir. 1996).

        Plaintiffs point to our statement in Brown, a case brought under the LMRDA, that the

plaintiffs did not have to reserve the right to seek attorney fees in voluntarily dismissing the

action. Id. at 767. However, the issue in Brown, whether an express reservation of the

court’s jurisdiction was required, is separate from the question of whether the parties’

settlement included any claim to attorney fees. Accord Young v. Powell, 729 F.2d 565, 566

(8th Cir. 1984) (“The decisions holding that a claim for attorney’s fees is separable from the

principal claim after a judgment on the merits do not hold that such a claim is not a disputed

issue in the particular case.”).2

        Taking a different tack, plaintiffs argue that this court’s decisions in Jennings and

Toth are not controlling because neither case involved the interpretation of a consent

judgment. However, nothing in either case suggests that the form of the settlement would

have made a difference with respect to the issue of waiver. Conceding as much, plaintiffs

rely on the Eighth Circuit’s unexplained distinction between a settlement agreement and a

settlement finalized by consent decree. See Cody v. Hillard, 304 F.3d 767, 778 (8th Cir.

2002); Wray, 151 F.3d at 809; Young, 729 F.2d at 566-67.

        The court in Young observed in dicta that “[t]he case before us does not involve a

situation wherein a settlement was finalized by a consent decree or wherein the parties



        2
          The award of fees in Brown was nonetheless reversed because plaintiffs had not shown that they
were prevailing parties under the so-called catalyst theory. The Supreme Court has since clarified that to
be “prevailing,” there must be a judicially sanctioned change in the legal relationship of the parties—such
as a settlement agreement enforced through a consent decree. Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health and Human Res., 532 U.S. 598, 605 (2001).
No. 05-2057                                                                                    11

stipulated to a dismissal, reserving the question of attorney fees.” 729 F.2d at 566 (footnotes

omitted). No explanation was given for how or why a settlement by consent decree should

be treated differently, and the cases cited in the supporting footnote actually address whether

a plaintiff may be a prevailing party when a case has been settled by consent decree. See,

e.g., Maher v. Gagne, 448 U.S. 122, 124 (1980); see also id. at 129 (“Nothing in the

language of § 1988 conditions the District Court’s power to award fees on full litigation of

the issues or on a judicial determination that the plaintiff’s rights have been violated.”).

       As noted earlier, the court in Young declared that the parties to a settlement should not

stipulate to dismissal without reserving any unresolved issues or indicating such an intention

in some way. 729 F.2d at 567 n.3. In Cody, this holding was interpreted to create a

presumption that a settlement of all claims precludes an award of attorney fees absent an

express reservation to the contrary. Because of the distinction noted in Young, however, the

court also found that no similar presumption would arise when a consent decree had been

entered. The court explained as follows:

               Wray and Young imply that if the parties to a civil rights litigation enter
       into a settlement agreement before entry of an enforceable judgment or consent
       decree, and the agreement purports to resolve all issues in the case, then it will
       be presumed to exclude an award of attorneys’ fees to plaintiff unless the
       parties expressly provide to the contrary. This rule has added force after
       Buckhannon, since that case clarifies that a plaintiff is rarely, if ever, legally
       entitled to court-awarded fees unless he or she has gained a consent decree or
       judgment.

               However, no presumption against fees applies here. The settlement we
       interpret was reached after the class won a consent decree, clearly establishing
       its status as a prevailing party. In addition, the agreement here, unlike the
       agreements at issue in Wray and Young, nowhere purports to resolve all
       disputed issues. We must therefore determine the parties’ intent from other
No. 05-2057                                                                                  12

       features of the agreement.

Cody, 304 F.3d at 778. Nothing in these cases persuades us that the approach we adopted

in Jennings should not apply when a settlement of all claims is formalized by consent

judgment. Significantly, none of the Eighth Circuit cases actually involved the interpretation

of a settlement finalized by consent judgment. In fact, Cody stands for the proposition that

a presumption of waiver (which has not been adopted in this circuit) does not apply when a

settlement agreement is preceded by a consent decree. Also, unlike this case, the settlement

in Cody did not purport to dispose of all claims.

D.     Intention of the Parties

       Finally, we review the district court’s finding that the parties unambiguously intended

to reach a settlement in full by stipulating that the consent judgment was a “final order of the

court, disposing of all remaining claims in this action.” The district judge, who participated

in the settlement discussions and drafted the consent judgment, specifically ruled that “[t]his

comprehensive language in the stipulated consent judgment demonstrates that the parties

intended to reach a settlement in full.” McCuiston v. Conder, 385 F. Supp. 2d 617, 619 (E.D.

Mich. 2005). Although intent is a question of fact, it may be determined by the court when

the record permits only one inference. Jennings, 715 F.2d at 1114.

       A claim for attorney fees and costs was asserted in the complaint, but was not the

subject of discussion at or prior to the settlement conference. The district court scheduled

the settlement conference, and required that representatives with full authority to settle be in

attendance. The terms of settlement were discussed and accepted, with no mention of the
No. 05-2057                                                                               13

plaintiffs’ claim for nearly $160,000 in attorney fees and costs. While this meant that no

separate agreement was reached on the claim for attorney fees, it did not prevent the parties

from agreeing to a settlement in full. The Stipulated Consent Judgment executed by the

parties awarded plaintiffs injunctive relief, included no monetary damages of any kind, and

purported to dispose of “all remaining claims.” Plaintiffs point to no circumstances, except

for their purposeful silence on the issue, to suggest that anything less than a comprehensive

settlement was reached in this case.

       AFFIRMED.
