                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
      ___________

      No. 99-1738
      ___________

William T. Gilbert, III,                  *
                                          *
      Plaintiff - Appellant,              *
                                          *
      v.                                  *
                                          *
Monsanto Company,                         *
                                          *
      Defendant - Appellee.               *

      ___________                             Appeals from the United States
                                              District Court for the Eastern
      No. 99-1873                             District of Missouri.
      ___________

William T. Gilbert, III,                  *
                                          *
      Plaintiff - Appellee,               *
                                          *
      v.                                  *
                                          *
Monsanto Company,                         *
                                          *
      Defendant - Appellant.              *

                                    ___________

                               Submitted: November 15, 1999

                                   Filed: June 20, 2000
                                    ___________
Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BEAM, Circuit Judges.
                           ___________

JOHN R. GIBSON, Circuit Judge.

       William T. Gilbert, III appeals from the district court’s judgment on his action
to enforce his settlement agreement with Monsanto Company. Gilbert argues that the
district court improperly denied him attorney’s fees and back pension benefits
following Monsanto’s breach of the settlement agreement. Monsanto cross-appeals,
arguing that the district court lacked jurisdiction to enforce the settlement agreement
and that, even assuming jurisdiction was proper, parol evidence of any prior agreement
as to pension benefits should not have been considered by the district court. We affirm
the enforcement of the settlement agreement and denial of back pension benefits, but
reverse the denial of attorney’s fees.

       On June 29, 1995, Gilbert brought suit against Monsanto under the Age
Discrimination in Employment Act (“ADEA”) and the Missouri Human Rights Act
(“MHRA”). Gilbert’s attorney, David C. Howard, presented a written settlement
demand to Monsanto on March 6, 1997, which requested a lump sum payment and
immediate access to pension benefits. William Weidle, Jr., attorney for Monsanto,
orally accepted the demand on behalf of his client. Howard then drafted an agreement
which included the lump sum payment but made no mention of Gilbert’s pension
benefits. Monsanto’s in-house counsel, Marty Zucker, signed the agreement, and the
document was then retained by Weidle and never signed by Gilbert. Howard testified
at a hearing on a motion to enforce the settlement agreement that he did not include a
pension benefits provision in the agreement because Weidle told him that Gilbert was
entitled to accelerated pension benefits regardless of the settlement. The parties later
advised the district court of their settlement agreement, and the court dismissed the case
with prejudice subject to its retention of jurisdiction to enforce the agreement.




                                           -2-
        Monsanto paid Gilbert the lump sum they had agreed upon. However, Gilbert
failed to receive payments under his pension, so he moved the district court to enforce
the settlement agreement. On June 3, 1998, the court found that the parties’ oral
agreement included early receipt of pension benefits and ordered the parties to work
out a payment schedule. One month later, the court denied Gilbert’s motion for
attorney’s fees as a prevailing party under the ADEA. Then, in its order of August 17,
1998, the court found that an amendment to the pension plan resulted in Gilbert being
entitled to higher monthly payments under the plan than if he had immediately begun
receiving payments following the settlement. These higher payments, the court
reasoned, fully compensated Gilbert for the missed payments. The parties attempted
to appeal the district court’s rulings twice before, but we dismissed those appeals as
premature. Gilbert filed the current appeal on March 1, 1999, and Monsanto
subsequently filed its cross-appeal.

                                           I.

        Monsanto challenges the current appeal as untimely, arguing that the district
court entered a final judgment on August 17, 1998. However, in dismissing a prior
appeal on February 26, 1999, we held that the final judgment for purposes of appeal
was entered on February 5, 1999. “‘The law of the case’ doctrine generally requires
that a decision on a former appeal be followed in any subsequent proceedings in that
court or a lower court unless evidence subsequently introduced is substantially different
or the decision is clearly erroneous and works manifest injustice.” South Cent. Enters.,
Inc. v. Farrington (In re Progressive Farmers Ass’n), 829 F.2d 651, 655 (8th Cir. 1987).
Monsanto points to no error or injustice, and we see none. Therefore, Gilbert’s March
1, 1999 notice of appeal of the district court’s judgment was well within the 30-day
requirement of 28 U.S.C. § 2107 (1994).




                                          -3-
                                           II.

       Monsanto further argues that the district court was without jurisdiction to enter
its order enforcing the terms of the parties’ oral settlement agreement. We review
questions of subject matter jurisdiction de novo. See Jenisio v. Ozark Airlines, Inc.
Retirement Plan for Agent and Clerical Employees, 187 F.3d 970, 972 (8th Cir. 1999).

       Federal courts do not have automatic ancillary jurisdiction to enforce a
settlement agreement arising from federal litigation. See Kokkonen v. Guardian Life
Ins. Co. of America, 511 U.S. 375, 380 (1994). “Ancillary jurisdiction to enforce a
settlement agreement exists only ‘if the parties’ obligation to comply with the terms of
the settlement agreement [is] made part of the order of dismissal--either by . . . a
provision “retaining jurisdiction” over the settlement agreement [ ] or by incorporat[ion
of] the terms of the settlement agreement in the order.’” Miener v. Missouri Dept. of
Mental Health, 62 F.3d 1126, 1127 (8th Cir. 1995) (quoting Kokkonen, 511 U.S. at
381).

        Monsanto contends that the district court only retained jurisdiction over the
parties’ “executed” settlement agreement and thus lacked jurisdiction to enter a
judgment based on an oral agreement. The parties’ Stipulation of Dismissal stated:
“The ‘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.” Since the stipulation referred to an “executed” settlement agreement,
and since no such agreement was actually executed because Gilbert failed to sign it,
Monsanto argues that the court did not have jurisdiction to consider Gilbert’s motion
to enforce the parties’ agreement.


                                           -4-
      The district court determined that it retained jurisdiction to rule on Gilbert’s
motion to enforce the parties’ settlement agreement, reasoning as follows:

      Although it appears that the language of the stipulation contemplated the
      Court’s having jurisdiction to enforce a specific written agreement, it is
      clear that no written agreement existed. The Court believes that there was
      an oral settlement agreement in this case, and that [the Court] does retain
      jurisdiction under the terms of that stipulation to enforce the terms of the
      settlement agreement.

This statement was made in the context of the district court’s careful analysis of the
record before it and strong reliance on credibility issues. We hold on the record before
us that the district court did not clearly err in finding that there was an oral agreement
or in concluding that it retained jurisdiction over the enforcement of the settlement
agreement, regardless of its form.

                                           III.

      We turn now to the district court’s interpretation of the settlement agreement,
which we review de novo. See Grant County Sav. & Loan Ass’n v. Resolution Trust
Corp., 968 F.2d 722, 724 (8th Cir. 1992). Our analysis is guided by “general rules of
contract construction.” NLRB v. Superior Forwarding, Inc., 762 F.2d 695, 697 (8th
Cir. 1985).

                                           A.

      Monsanto argues that Gilbert ratified the written settlement agreement by
accepting the lump sum payment. Therefore, Monsanto contends, the district court’s
consideration of extrinsic evidence of the parties’ agreement that Gilbert have
immediate access to his pension benefits violated the parol evidence rule. However,
Gilbert argues facts to support the conclusion that Monsanto should be equitably


                                           -5-
estopped from making its parol evidence argument. Gilbert asserts that his attorney did
not put a pension benefits provision in the settlement agreement because Weidle,
Monsanto’s attorney, said it was unnecessary since Gilbert already held the right to
immediate access to his pension benefits. The district court agreed with Gilbert’s
assertion, crediting Howard’s testimony over Weidle’s. Since Gilbert reasonably and
detrimentally relied on Weidle’s statement, Monsanto is equitably estopped from
denying it. See Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 659 (8th Cir. 1992)
(“The principle of estoppel declares that a party who makes a representation that
misleads another person, who then reasonably relies on that representation to his
detriment, may not deny that representation.”). Monsanto’s parol evidence argument
must therefore fail, because it runs contrary to Weidle’s assurance that Gilbert could
obtain immediate access to his pension benefits without any language in the settlement
agreement to that effect.

                                          B.

       Gilbert contends he should be awarded back pension benefits for the
approximately sixteen months Monsanto improperly failed to pay them. Gilbert argues
that such payment is necessary to make him whole. See Brooks v. Woodline Motor
Freight, Inc., 852 F.2d 1061, 1065 (8th Cir. 1988) (“Under the ADEA the district court
must tailor the remedy to make the injured party whole.”).

       Monsanto points out that when Gilbert actually began receiving pension benefits,
the plan had been amended such that Gilbert received greater monthly benefits than he
would have been receiving had he begun to receive his pension at the appropriate time.
Therefore, Monsanto argues, Gilbert’s lost payments are compensated by the higher
monthly payments, and any award of back benefits would constitute a windfall.

      Gilbert counters by citing Leftwich v. Harris-Stowe State College, 702 F.2d 686
(8th Cir. 1983), and Dyer v. Hinky Dinky, Inc., 710 F.2d 1348 (8th Cir. 1983), in

                                          -6-
support of the proposition that the higher pension payments cannot serve to offset the
missed payments. In both cases, the plaintiffs lost income due to improper actions by
their employers, but made more money in later pay periods than they would have under
the status quo before the wrongdoing. In Leftwich, also an ADEA case, the defendant
was allowed an offset from the plaintiff’s lost salary based on income the plaintiff
received from other employment. See 702 F.2d at 693. The calculation was made on
a yearly basis, with no offset allowed in an earlier year for wages earned by the plaintiff
in a later year that exceeded the plaintiff’s lost income for that year. See id. at 693-94.
Gilbert argues that just as the defendant in Leftwich could not offset a loss in an earlier
year with payments received in a later one, Monsanto should not be able to offset
missed payments in earlier months with higher payments in later months. In support
of a pay-period-by-pay-period mode of analysis, Gilbert cites Dyer, a case decided
under the Vietnam Era Veterans’ Readjustment Assistance Act. The plaintiff was
promoted to a higher paying position within his company after suffering an income loss
due to having been assigned an incorrect seniority date. See Dyer, 710 F.2d at 1349-
50. There we found that the best way to make the plaintiff whole was to adopt a pay-
period-by-pay-period approach, preventing the defendant from offsetting losses
incurred by the plaintiff in earlier pay periods by wages the plaintiff earned in later pay
periods in excess of that to which the plaintiff was entitled under the Act. See id. at
1351-52.

        In both Leftwich and Dyer, this court found that the defendants could not offset
the earlier losses against gains realized by the plaintiffs in later periods. In those cases,
however, the later increase in income was in every sense collateral to the loss. Gilbert,
unlike the plaintiff in Leftwich, received his higher payments directly from the
defendant, Monsanto. Also, while the plaintiff in Dyer received higher pay as
compensation for performing a different job, the higher pension payments that Gilbert
eventually began receiving were meant to satisfy the same obligation owed to him when
the payments should have commenced. Therefore, Monsanto’s higher payments are


                                            -7-
not collateral to Monsanto’s duty to pay and should accordingly offset the missed
payments plus interest.

       The district court properly denied Gilbert back benefits, finding him fully
compensated by the increased payments he is now receiving. To dispose of the pension
benefit issue, the district court ordered that Gilbert be re-employed for one day so he
could be covered by the amended plan. Monsanto then provided Gilbert with the
figures for the various options available to him, including a lump sum payment, a Single
Life Annuity under which the payments would terminate at his death, or a 50% Joint
& Survivor Annuity under which his spouse would continue to receive fifty percent of
his pension benefits should he predecease her.

       Under the 50% Joint & Survivor Annuity, the re-employment at the later date
made Gilbert eligible for monthly pension benefits of at least $1443.76,1 as compared
to $1314.52 had the benefits commenced in May 1997 when Monsanto agreed to
provide them. By receiving benefits based on a pension commencement date of
October 1, 1998, there was about a sixteen month period when Gilbert received no
benefits. If he had been paid his pension at the lower amount for this period, these
benefits would have totaled $21,032.32. He argues that as the benefits actually
commenced October 1, 1998, when he was over fifty, he would have to live out most
of his life expectancy before receiving what he lost during the sixteen-month period.

       As stated above, Monsanto simply argues that because of the increased monthly
benefits, an award of back benefits would result in a windfall. The district court agreed
with Monsanto that the increased monthly benefit “compensates plaintiff for the delay
in initiating the payments.” The court continued that if Gilbert believed that the


      1
       Gilbert’s benefits as of June 1, 1998 would have been $1443.76. The district
court pointed out that the amount would have to be re-calculated for an October 1,
1998 commencement date.

                                          -8-
increased monthly benefit did not repay the back benefits quickly enough, he had the
option of accepting the lump sum payment. While the court did not mention that if
Gilbert did not live long enough to recoup the omitted payments, his spouse would be
paid benefits at one-half the rate, this is further support for its reasoning.

      We are persuaded by the district court’s reasoning and affirm its denial of back
benefits for the approximately sixteen months Monsanto wrongfully denied them.

                                            IV.

        Gilbert also appeals the district court’s denial of attorney’s fees, arguing that he
is entitled to such fees as a prevailing party under the ADEA. The ADEA incorporates
29 U.S.C. § 216(b), see Cova v. Coca-Cola Bottling Co., 574 F.2d 958, 962 (8th Cir.
1978), which provides that “[t]he court . . . shall, in addition to any judgment awarded
to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the
defendant, and costs of the action.” 29 U.S.C. § 216(b) (1994). We review de novo
whether a litigant is a prevailing party. See St. Louis Fire Fighters Ass’n Int’l Ass’n
of Fire Fighters Local 73 v. City of St. Louis, 96 F.3d 323, 330 (8th Cir. 1996). We
review a district court's award of attorney's fees for abuse of discretion; however, “a
district court's discretion to deny attorney's fees to a prevailing party is narrow.” Id.
at 331. For the reasons that follow, we reverse the district court’s denial of Gilbert’s
request for attorney’s fees.

       Monsanto is correct that “attorneys' fees may not be recovered by a prevailing
party in the absence of statutory authority.” American Fed’n of Musicians, Local 2-197
v. The St. Louis Symphony Society, 203 F.3d 1079, 1081 (8th Cir. 2000) (citing
Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 247 (1975)).
Monsanto suggests that Gilbert may not receive attorney’s fees in this case because he
is simply “prevailing on a contract claim,” relying heavily on Arvinger v. Mayor and
City Council of Baltimore, 31 F.3d 196 (4th Cir. 1994). In Arvinger, the plaintiff

                                            -9-
brought an action seeking enforcement of the agreement he had reached with the
defendant in settlement of the plaintiff’s civil rights claim. See id. at 197. However,
he did not prevail in the enforcement action and was consequently denied fees on
appeal. See id. at 201-02. Arvinger stands for the proposition that a prevailing civil
rights plaintiff cannot simply carry over prevailing party status to an enforcement action
in which the plaintiff did not prevail and be awarded attorney’s fees by virtue of
success in the first suit. See id. at 202.

        In contrast to the plaintiff in Arvinger, however, Gilbert prevailed in both his
initial action as well as in his action to enforce the parties’ settlement agreement. It is
well settled that “a plaintiff ‘prevails’ when actual relief on the merits of his claim
materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103,
111-12 (1992). In the present action, Gilbert’s relief, which consisted of the
enforcement of his right to receive benefits, materially altered the relationship between
him and Monsanto. Monsanto denied that it had agreed to pay accelerated pension
benefits, and the issue had to be litigated to a successful conclusion by Gilbert. Gilbert
is therefore a prevailing party. Monsanto counters by arguing that Gilbert has only
prevailed on a contract claim, as his ADEA claim was dismissed with prejudice.
However, “monitoring the defendant’s compliance with court orders and enforcing the
remedy are generally compensable as part of the underlying case.” Jenkins v. Missouri,
127 F.3d 709, 717 (8th Cir. 1997).

      Since Gilbert is a prevailing party, we must next determine whether the district
court abused its discretion in denying him attorney’s fees. As we have stated
previously, “[p]revailing plaintiffs should ordinarily recover fees unless special
circumstances would make such an award unjust.” Id. at 716. The district court found
such special circumstances in the present case, noting that “plaintiff’s counsel agreed
to dismiss this lawsuit before obtaining a fully executed agreement containing the
agreed-upon terms.” The court failed to acknowledge, however, that even if Gilbert

                                           -10-
had signed the agreement, he still would have had to seek enforcement because the
agreement still would be silent as to his right to pension benefits. However, this silence
would not be due to any fault of Gilbert, but due to Monsanto’s attorney’s
misrepresentations as to Gilbert’s right to receive benefits in the absence of a
settlement agreement. Therefore, we conclude that the district court abused its
discretion in denying Gilbert’s request for attorney’s fees.

      We make no award, however, for fees incurred in this appeal.

                                       *    *     *

       For the foregoing reasons, we affirm the district court’s enforcement of the
settlement agreement and denial of back pension benefits, but reverse its denial of
attorney’s fees to Gilbert. We remand for further proceedings consistent with this
opinion.

BEAM, Circuit Judge, concurring and dissenting.

        I concur in the court's opinion except for the award of attorney fees. In my view,
this is a contract claim for which fees are not awardable.

      A true copy.

             Attest:

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




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