David Peery v. City of Miami , 805 F.3d 1293 ( 2015 )


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  •               Case: 14-13287     Date Filed: 11/10/2015     Page: 1 of 16
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-13287
    ________________________
    D.C. Docket No. 1:88-cv-02406-FAM
    MICHAEL POTTINGER, et al.,
    Plaintiffs,
    DAVID PEERY,
    Plaintiff - Appellant,
    versus
    CITY OF MIAMI,
    Defendant - Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (November 10, 2015)
    Before JORDAN and JULIE CARNES, Circuit Judges, and GOLDBERG, ∗ Judge.
    JORDAN, Circuit Judge:
    ∗
    Honorable Richard W. Goldberg, Judge of the United States Court of International Trade,
    sitting by designation.
    Case: 14-13287       Date Filed: 11/10/2015   Page: 2 of 16
    In the hierarchy of law, language is king. Words matter in constitutions,
    treaties, statutes, rules, cases, and contracts. And, as seen in this case, they matter
    in civil rights settlement agreements which, once judicially approved, become
    consent decrees.
    David Peery, on behalf of a class, asks us to award his counsel attorneys’
    fees for opposing modifications proposed by the City of Miami to such an
    agreement. We decline to do so because the parties’ agreement limited future
    attorneys’ fees to enforcement proceedings. Given that modification proceedings
    do not trigger an award of attorneys’ fees under the agreement, we affirm the
    district court’s denial of fees.
    I
    This case has a prolonged history. We summarize only what is necessary to
    provide context for our analysis.
    More than 25 years ago, Michael A. Pottinger, as representative of a class of
    homeless persons, filed a lawsuit against the City of Miami under 
    42 U.S.C. § 1983
    , alleging that the City’s police department had “a custom, practice and policy
    of arresting, harassing and otherwise interfering with homeless people for engaging
    in basic activities of daily life . . . in the public places where they are forced to
    live.” Pottinger v. City of Miami, 
    810 F. Supp. 1551
    , 1554 (S.D. Fla. 1992). Mr.
    Pottinger sought an injunction against the City to prohibit its police from arresting
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    homeless persons who engaged in “life-sustaining conduct” in public and from
    seizing and destroying their property. See 
    id.
     The district court found the City
    liable and granted Mr. Pottinger’s request for injunctive relief. See 
    id. at 1584
    (detailing the specific relief granted).
    The City appealed, challenging the basis and scope of the injunction. In
    December of 1994, following oral argument, we remanded the case to allow the
    district court to “issue appropriate clarifying language to guide the [C]ity in its
    determination of the scope of its duties under the injunction, and [to] consider
    whether its injunction should be modified in light of . . . events [that transpired
    subsequent to its order granting the injunction].” Pottinger v. City of Miami, 
    40 F.3d 1155
    , 1157 (11th Cir. 1994). On remand, the district court conducted an
    evidentiary hearing and ruled that the injunction would remain in effect because
    the circumstances on the ground had not changed significantly. See D.E. 360 at
    11.
    Once again the City appealed. We heard oral argument in January of 1996,
    and instructed the parties to try to settle their dispute. See Pottinger v. City of
    Miami, 
    76 F.3d 1154
     (11th Cir. 1996). After negotiating for nearly two years, the
    parties entered into a settlement agreement which the district court subsequently
    approved. See D.E. 397 (joint motion to approve settlement agreement); D.E. 398
    (final order approving settlement agreement, retaining jurisdiction, and dismissing
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    the case). The district court’s approval of the parties’ agreement functioned as the
    equivalent of the entry of a consent decree.              See Smalbein ex rel. Estate of
    Smalbein v. City of Daytona Beach, 
    353 F.3d 901
    , 905 (11th Cir. 2003) (“A formal
    consent decree is unnecessary because the . . . explicit retention of jurisdiction over
    the terms of the settlement [is] the ‘functional equivalent of an entry of a consent
    decree.’”) (citation omitted).1
    As part of their settlement, the parties agreed that the lawsuit and then-
    pending appeals would be dismissed “without costs and attorneys[’] fees (except
    such attorneys[’] fees as are specifically provided for [in the agreement])[.]” D.E.
    464-1 at 2.     Paragraph 25 of the agreement sets forth the parties’ resolution of
    attorneys’ fees:
    [T]he City shall pay to the Plaintiffs’ attorneys the sum of $900,000 . .
    . as and for attorneys[’] fees and costs, . . . as a part of the
    comprehensive settlement to be adopted through the implementation
    of this Settlement Agreement. Additionally, said payment is made to
    conclude all claims for attorneys[’] fees in the underlying litigation,
    including pending appeals, and in regard to all other matters
    connected with this Settlement Agreement, except enforcement
    proceedings, should such become necessary after non-binding
    mediation as provided below.
    Id. at 13 (emphasis added).
    1
    We therefore refer to the document approved by the district court interchangeably as the
    settlement agreement or consent decree, and draw upon cases dealing with both settlement
    agreements and consent decrees. See, e.g., Waters v. Int’l Precious Metals Corp., 
    237 F.3d 1273
    , 1276 (11th Cir. 2001) (citing consent decree case in appeal involving interpretation of
    settlement agreement approved by district court).
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    Like    paragraph    25,   paragraph     25a   of   the   agreement,   entitled
    “Enforcement/Mediation,” requires the parties to submit to non-binding mediation
    prior to initiating an action to enforce the settlement agreement:
    Prior to any party seeking court enforcement against any other party
    to this Settlement Agreement, the parties shall attempt to informally
    mediate a dispute in a non-binding mediation. . . . This requirement
    to mediate prior to seeking court enforcement shall not prevent a party
    from seeking immediate court enforcement if it clearly appears from
    specific facts shown by aff[i]davit that immediate and irreparable
    injury, loss or damage will result to the aggrieved party before the
    aggrieved party and the other party can conduct mediation[.]
    
    Id.
     at 13–14 (emphasis added).
    Paragraph 30, entitled “Modification,” states that the settlement agreement
    “may be modified by written agreement of the parties, or upon a showing of a
    significant change in circumstances warranting revision of the Agreement in a way
    suitably tailored to the change of circumstances, but in either event, only after
    approval by the Court.” 
    Id. at 14
    . Paragraph 30 does not provide for the award of
    fees in modification proceedings.
    II
    In October of 2000, the parties filed a joint motion to modify the settlement
    agreement. See D.E. 458. The agreement had established a “Start Off Fund” in
    order to compensate qualified class members. See D.E. 464-1 at 8. The payments
    were to be made within two years, see 
    id. at 13
    , but they started later than
    expected, and the parties asked the district court to modify the agreement to allow
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    payments to continue until the fund was exhausted. See D.E. 458 at 2. The district
    court did as the parties requested. See D.E. 459. No one sought attorneys’ fees for
    the work performed during the 2000 modification process.
    A
    Over a decade later, in September of 2013, the City invoked paragraph 30 of
    the settlement agreement and filed a “Motion for Limited Modification.” See D.E.
    464. According to the City, there had been “vast improvements in programs and
    services for the homeless,” but those improvements did not ameliorate problems
    among two subgroups of the homeless population—“the chronically homeless and
    sexual predators.” 
    Id. at 4
    . From the City’s perspective, modifications to the
    agreement were necessary “so [the] needs of these [sub]groups and the public at
    large [could] be met.” 
    Id.
     The City stated that it was “not seeking an Order to
    have the entire Agreement set aside.” 
    Id.
    The City grouped its proposed modifications into three major categories: the
    chronically homeless; the law enforcement protocol as it pertained to shelters; and
    sexual predators. See D.E. 464 at 18. First, arguing that they were “treatment
    resistant,” the City proposed exempting the chronically homeless (defined by the
    City as those “who refuse[ ] services on three separate occasions within a 189-day
    period,” with “multiple refusals in a 24-hour period” counting only as a single
    refusal) from the definition of homeless persons. Second, the City wanted to
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    change the definition of an “available shelter” to a facility which could
    accommodate the homeless for a minimum of 24 hours (as opposed to the 48 hours
    set forth in the agreement) and which had mats (instead of beds) for the homeless
    to sleep on. The City also wished to expand the territorial boundaries of available
    shelters and to count facilities as shelters even if they imposed involuntary
    substance abuse or mental health treatment. Third, the City sought to exclude
    sexual predators from the class of homeless persons under the agreement. Fourth,
    the City requested that police officers be allowed to arrest homeless persons for
    “life-sustaining conduct” misdemeanors that endangered the health, safety, and
    welfare of such persons or the public, regardless of shelter availability. Fifth, the
    City recommended reducing the number of activities constituting “life-sustaining
    conduct” for which an arrest was prohibited unless a shelter was available, offered,
    and refused.
    Mr. Peery, representing the class of plaintiffs, filed a response opposing the
    motion, arguing that, in effect, the City was attempting to terminate the settlement
    agreement as to the “chronically homeless” and registered sex offenders. See D.E.
    477 at 2. Mr. Peery also maintained that the City failed to make out a prima facie
    case for the requested modifications. See, e.g., 
    id. at 3, 33
    .
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    B
    In October of 2013, the district court held a hearing on the City’s motion for
    modification and suggested that the parties mediate their dispute. See D.E. 508 at
    45–51. The district court appointed a mediator, and two months later the parties
    filed a joint motion to approve the so-called 2014 addendum to the original
    settlement agreement. The district court granted the parties’ motion. See D.E. 525
    (joint motion); D.E. 544 (order).
    In the 2014 addendum approved by the district court, the parties agreed to
    some of the modifications proposed by the City. The major changes were that
    persons who were registered sex offenders or sexual predators under certain
    Florida statutes were no longer afforded some of the protections provided by the
    original settlement agreement; a facility was now considered a shelter if it could
    accommodate the homeless for a minimum of 24 hours and had mats at least three
    inches thick for the homeless to sleep on; starting a fire in a park no longer
    constituted “life-sustaining conduct;” and arrests could be now be made for “life-
    sustaining conduct” misdemeanors after a warning even if a shelter was available,
    but only if the conduct involved “imminent threat of physical injury.” See D.E.
    525-1 at 2-5. Some of the City’s requested modifications, such as those relating to
    the chronically homeless, were not agreed to by the parties and did not become part
    of the 2014 addendum. See 
    id. at 1-2
    .
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    Significantly, the 2014 addendum did not change the attorneys’ fees
    language in paragraph 25 of the original settlement agreement. Nor did it alter
    paragraphs 25a (“Enforcement/Mediation”) or 30 (“Modification”) of that
    agreement. The 2014 addendum did, however, include a new paragraph 25b,
    which recognizes the fluidity of the homeless situation in Miami, and allows the
    parties to “mediate further modifications” to the settlement agreement and the 2014
    addendum. See D.E. 525-1 at 8. Paragraph 25b provides that if future issues “are
    not resolved in mediation, either party may invoke the court’s jurisdiction . . . to
    seek further modifications” of the settlement agreement. 
    Id.
    C
    Following the district court’s approval of the 2014 addendum, Mr. Peery, as
    the class representative, moved for $476,094.55 in attorneys’ fees for the work
    performed by counsel during the modification process. See D.E. 553 at 2. The
    district court denied Mr. Peery’s motion, ruling that paragraph 25 of the settlement
    agreement permits attorneys’ fees for enforcing the agreement, but not for
    opposing modifications to the agreement. See D.E. 557 at 2–3. The district court
    also found that Mr. Peery was not the prevailing party as to the City’s motion for
    modification because paragraph 25 precluded such a finding and because Mr.
    Peery “settled short of a [c]ourt ruling on the [City’s] motion.” 
    Id. at 3
    . Mr. Peery
    now appeals the denial of fees.
    9
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    III
    We exercise plenary review in interpreting a settlement agreement which has
    become the functional equivalent of a consent decree through judicial approval.
    See Waters, 237 F.3d at 1277; Turner v. Orr, 
    759 F.2d 817
    , 821 (11th Cir. 1985).
    In cases governed by federal law, settlement agreements and consent decrees are
    interpreted according to “principles of contract law.” Waters, 237 F.3d at 1277
    (settlement agreements); Jacksonville Branch, NAACP v. Duval Cty. Sch. Bd., 
    978 F.2d 1574
    , 1578 (11th Cir. 1992) (consent decrees). Agreements are construed to
    effectuate the intent of the parties, and such intent “is derived from the objective
    meaning of the words used.” Feaz v. Wells Fargo Bank, N.A., 
    745 F.3d 1098
    ,
    1104 (11th Cir. 2014) (applying federal law to HUD standard-form covenant). Cf.
    Kimbell Foods, Inc. v. Republic Nat’l Bank of Dallas, 
    557 F.2d 491
    , 496 (5th Cir.
    1977) (applying Texas law: “The language of the contract, unless ambiguous,
    represents the intention of the parties.”), aff’d sub nom., United States v. Kimbell
    Foods, Inc., 
    440 U.S. 715
     (1979).
    A
    In civil rights cases brought pursuant to 
    42 U.S.C. § 1983
    , the award of
    attorneys’ fees is governed by 
    42 U.S.C. § 1988
    .        Generally, a plaintiff who
    prevails is entitled to an award of reasonable attorneys’ fees “‘unless special
    circumstances would render such an award unjust.’” Crowder v. Hous. Auth. of
    10
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    City of Atlanta, 
    908 F.2d 843
    , 848 (11th Cir. 1990) (quoting Hensley v. Eckerhart,
    
    461 U.S. 424
    , 429 (1983)).
    A consent decree constitutes a “material alteration of the legal relationship
    of the parties necessary to permit an award of attorneys’ fees.” Buckhannon Bd. &
    Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 
    532 U.S. 598
    , 604
    (2001) (internal quotation marks and citation omitted).        So does a settlement
    agreement which the district court retains jurisdiction to enforce.         See Am.
    Disability Ass’n v. Chmielarz, 
    289 F.3d 1315
    , 1320 (11th Cir. 2002).           Other
    circuits have therefore held that under § 1988 attorneys’ fees can be awarded for
    defending, enforcing, opposing the modification of, or monitoring compliance with
    an existing consent decree. See, e.g., Binta B. ex rel. S.A. v. Gordon, 
    710 F.3d 608
    ,
    625-27 (6th Cir. 2013); Balla v. Idaho, 
    677 F.3d 910
    , 918 (9th Cir. 2012); Johnson
    v. City of Tulsa, 
    489 F.3d 1089
    , 1109 (10th Cir. 2007).
    There is, however, an important caveat to these general principles. The
    Supreme Court held in Evans v. Jeff D., 
    475 U.S. 717
    , 736 (1986), that § 1988
    permits settlement agreements conditioned on the waiver of attorneys’ fees, and we
    have since explained that one of the situations which might constitute a special
    circumstance justifying the denial of fees is “where the plaintiff through a
    settlement or consent order agreed to compromise his right to pursue subsequent
    fees.” Maloney v. City of Marietta, 
    822 F.2d 1023
    , 1027 (11th Cir. 1987).
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    B
    A settlement agreement which is the functional equivalent of a consent
    decree should be “interpreted as written.” Sierra Club v. Meiburg, 
    296 F.3d 1021
    ,
    1032 (11th Cir. 2002). See also United States v. Armour & Co., 
    402 U.S. 673
    , 682
    (1971) (explaining that “the scope of a consent decree must be discerned within its
    four corners, and not by reference to what might satisfy the purposes of one of the
    parties to it”). As explained below, paragraph 25 of the settlement agreement is
    unambiguous, and allows attorneys’ fees only in enforcement proceedings.
    Paragraph 25 provides (emphasis ours) that the City would pay the
    plaintiffs’ counsel the sum of $900,000 in attorneys’ fees, and that this payment
    would “conclude all claims for attorneys[’] fees in the underlying litigation,
    including pending appeals, and in regard to all other matters connected with this
    Settlement Agreement, except enforcement proceedings, should such become
    necessary after non-binding mediation as provided below.” The plaintiffs and the
    City, in other words, chose to limit future attorneys’ fees to enforcement
    proceedings.
    Here there were no enforcement proceedings. The plaintiffs never claimed
    that the City breached the settlement agreement/consent decree, and never sought
    enforcement through civil contempt after non-binding mediation. See Reynolds v.
    McIness, 
    338 F.3d 1201
    , 1208 (11th Cir. 2003) (“[C]onsent decrees, like all
    12
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    injunctions, are to be enforced through the trial court’s civil contempt power.”);
    Reynolds v. Roberts, 
    207 F.3d 1288
    , 1298 (11th Cir. 2000) (explaining the process
    by which a plaintiff seeks enforcement of a consent decree). Instead, they opposed
    the City’s motion for modification, and following mediation came to an agreement
    with the City on some changes. Because there were no enforcement proceedings,
    the plaintiffs’ counsel are not entitled to an award of attorneys’ fees under
    paragraph 25.
    Our conclusion is reinforced by paragraph 30 of the agreement, which deals
    with modification, the type of proceeding at issue here. Notably, paragraph 30
    does not provide for the award of attorneys’ fees in proceedings to modify the
    terms of the settlement agreement/consent decree. Simply put, enforcement and
    modification are separate concepts (and constitute different proceedings) under the
    terms of the parties’ agreement, and attorneys’ fees are available only in
    enforcement proceedings. If we construed the agreement to allow for fees in
    modification proceedings, we would, improperly, be adding language to paragraph
    30 and nullifying the limitation in paragraph 25. See Mastrobuono v. Shearson
    Lehman Hutton, Inc., 
    514 U.S. 52
    , 63 (1995) (counseling that an agreement should
    be interpreted to “give effect to all its provisions and to render them consistent
    with each other”).
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    Mr. Peery’s reliance on cases like Binta B., 710 F.3d at 625-27, is misplaced.
    The Sixth Circuit held in Binta B. that plaintiffs who achieve some success in
    opposing modifications to a consent decree are considered prevailing parties under
    § 1988, but that case did not involve a settlement agreement/consent decree which
    limited the availability of future attorneys’ fees. Here we have just that sort of
    limitation, and it is the “agreement of the parties, rather than the force of the law . .
    . that creates the obligations embodied in a consent decree.” Local No. 93, Int’l
    Ass’n of Firefighters v. City of Cleveland, 
    478 U.S. 501
    , 522–23 (1986). Again,
    we cannot rewrite paragraphs 25 and 30 to allow for attorneys’ fees in modification
    proceedings.
    The district court’s approval of the 2014 addendum after the parties’
    successful mediation does not help Mr. Peery. It is true that, in the abstract, the
    court’s approval of the 2014 addendum constituted the sort of judicial alteration in
    the parties’ relationship that could make the plaintiffs prevailing parties under §
    1988. See Chmielarz, 
    289 F.3d at 1320
    . But that is almost beside the point, for—
    as we have said before—this is not the typical § 1988 case. The parties struck a
    compromise about attorneys’ fees (past, present, and future) and deviated from §
    1988 when they executed the original settlement agreement many years ago.
    Because the 2014 addendum did not change paragraphs 25 and 30 of the settlement
    agreement/consent decree, those bargained-for paragraphs continue to control the
    14
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    issue of attorneys’ fees. See Evans, 
    475 U.S. at 736
    ; Maloney, 
    822 F.2d at 1027
    .
    And under paragraph 25, attorneys’ fees are only available when there are
    enforcement proceedings.
    We recognize that, at some level, this result may not “feel” right. After all,
    in the 2014 addendum the plaintiffs preserved much of the success they had
    originally obtained. But when parties enter into a settlement agreement that turns
    into the equivalent of a consent decree, they generally do so “after careful
    negotiation,” the aim of which is to “produce[ ] [an] agreement on their precise
    terms.” Armour & Co., 
    402 U.S. at 681
    .            And we have explained that “[l]ong
    standing precedent evinces a strong public policy against judicial rewriting of
    consent decrees.” Reynolds v. Roberts, 
    202 F.3d 1303
    , 1312 (11th Cir. 2000).
    Although it is important to compensate attorneys who help their clients prevail (or,
    as is the case here, keep their hard-won gains) in civil rights cases, it is just as
    important to hold parties to the terms of the bargains they strike to resolve
    contentious and difficult § 1983 actions.
    IV
    The district court’s denial of Mr. Peery’s motion for attorneys’ fees is
    affirmed. 2
    2
    Given our interpretation of the settlement agreement/consent decree, we need not and do not
    address the district court’s ruling that the plaintiffs were not prevailing parties in the
    modification proceedings.
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    AFFIRMED.
    16
    

Document Info

Docket Number: 14-13287

Citation Numbers: 805 F.3d 1293

Filed Date: 11/10/2015

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (21)

Johnson v. City of Tulsa , 489 F.3d 1089 ( 2007 )

Thomas E. Crowder, B. Mae Miller, Dorothy Maddox v. Housing ... , 908 F.2d 843 ( 1990 )

Sierra Club v. John Hankinson , 296 F.3d 1021 ( 2002 )

Reynolds v. McInnes , 338 F.3d 1201 ( 2003 )

American Disability Assoc. v. Ariel Chmielarz , 289 F.3d 1315 ( 2002 )

Jacksonville Branch, Naacp v. The Duval County School Board,... , 978 F.3d 1574 ( 1992 )

Michael Pottinger, Peter Carter, Berry Young v. City of ... , 40 F.3d 1155 ( 1994 )

Michael Pottinger, Peter Carter, Berry Young v. City of ... , 76 F.3d 1154 ( 1996 )

Phillip Maloney v. City of Marietta , 822 F.2d 1023 ( 1987 )

Balla v. Idaho , 677 F.3d 910 ( 2012 )

kimbell-foods-inc-fka-kimbell-milling-company-dba-kimbell-grocery , 557 F.2d 491 ( 1977 )

johnny-reynolds-individually-on-behalf-of-himself-and-as-representative-of , 207 F.3d 1288 ( 2000 )

Claudia Smalbein v City of Daytona Beach , 353 F.3d 901 ( 2003 )

Pottinger v. City of Miami , 810 F. Supp. 1551 ( 1992 )

Buckhannon Board & Care Home, Inc. v. West Virginia Dept. ... , 121 S. Ct. 1835 ( 2001 )

United States v. Kimbell Foods, Inc. , 99 S. Ct. 1448 ( 1979 )

United States v. Armour & Co. , 91 S. Ct. 1752 ( 1971 )

Evans v. Jeff D. Ex Rel. Johnson , 106 S. Ct. 1531 ( 1986 )

Local Number 93, International Ass'n of Firefighters v. ... , 106 S. Ct. 3063 ( 1986 )

Mastrobuono v. Shearson Lehman Hutton, Inc. , 115 S. Ct. 1212 ( 1995 )

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