 VICTORIA SMYTH, for herself v. Sonia Rivero

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 VICTORIA SMYTH, for herself and as
next friend for her minor child,
Angela Smyth; PATRICIA
MONTGOMERY, for herself and as
next friend for her minor child,
Casey Montgomery,
No. 00-2453 Plaintiffs-Appellees, 
v.
SONIA RIVERO, in her official
capacity as Commissioner, Virginia
Department of Social Services,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Senior District Judge.
(CA-96-89-5)
Argued: November 2, 2001
Decided: February 21, 2002
Before WILKINSON, Chief Judge, and WILLIAMS and
MOTZ, Circuit Judges.
Reversed by published opinion. Judge Williams wrote the opinion, in
which Chief Judge Wilkinson and Judge Motz joined.
COUNSEL
ARGUED: Maureen Riley Matsen, OFFICE OF THE ATTORNEY
GENERAL, Richmond, Virginia, for Appellant. Edward M. Wayland,

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Charlottesville, Virginia, for Appellees. ON BRIEF: Randolph A.
Beales, Attorney General of Virginia, William H. Hurd, Solicitor
General, Siran S. Faulders, Senior Assistant Attorney General, E.
Paige Selden, Assistant Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL, Richmond, Virginia, for Appellant. Steven L.
Myers, VIRGINIA POVERTY LAW CENTER, INC., Richmond,
Virginia, for Appellees.
OPINION
WILLIAMS, Circuit Judge:
Appellant Sonia Rivero, Commissioner of the Virginia Department
of Social Services, appeals from a district court’s order awarding
attorney’s fees to Appellees Victoria Smyth, Patricia Montgomery,
and their children, Angela Smyth and Casey Montgomery (collec-
tively, Smyth and Montgomery) under 42 U.S.C.A. § 1988(b) (West
Supp. 2001), which authorizes an award of such fees to the prevailing
party in an action to enforce the provisions of certain federal statutes.
Because we conclude that the district court erroneously characterized
Smyth and Montgomery as prevailing parties, we reverse.
I.
Seven recipients of aid1 under the Aid to Families with Dependent
Children (AFDC) program, a welfare program funded by the federal
government and administered by the states, brought the underlying
action under 42 U.S.C.A. § 1983 (West Supp. 2001) in the United
States District Court for the Western District of Virginia, claiming
that a new paternity identification policy for welfare applicants insti-
tuted by the Commissioner2 violated the Social Security Act, 42
1The plaintiffs below, three single mothers and their four children,
sought and received permission to file their complaint and proceed in the
action under pseudonyms. (J.A. at 3.) The pseudonyms were as follows:
Victoria Smyth, Angela Smyth, Patricia Montgomery, Casey Montgom-
ery, Lynn Winchester, C. Winchester, and K. Winchester.
2Smyth and Montgomery named Clarence H. Carter, Rivero’s pre-
decessor as Commissioner of the Virginia Department of Social Services,
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U.S.C.A. §§ 601 et seq. (West 1991 & Supp. 2001), and related fed-
eral regulations, as well as the Supremacy and Equal Protection
Clauses of the U.S. Constitution. The policy, appearing at section
201.10 of Virginia’s AFDC3 Manual, required that an applicant for
welfare in Virginia either identify the father of any child for whom
aid was requested or, if uncertain of the child’s paternity, provide the
first and last names of all individuals who might be the father. The
plaintiffs asserted that they were unable to identify the fathers of their
children4 as required by the policy, that they had communicated that
fact to Virginia welfare officials, and that their welfare benefits had
been reduced or eliminated altogether as a result. They sought, inter
alia: (1) certification of a class of all children and their mothers who
had been or would be subjected to the loss of cash assistance or other
benefits for failure to comply with this regulation; (2) temporary
restraining orders prohibiting the Commissioner from refusing to pro-
vide benefits to Smyth and Montgomery; (3) a declaratory judgment
that the application of the policy to them violated the Social Security
Act, related federal regulations, and the Supremacy and Equal Protec-
tion Clauses; (4) preliminary and permanent injunctions prohibiting
the application of the policy to them or members of the proposed class
and requiring instead that the Commissioner give an applicant the
opportunity to attest under penalty of perjury to her lack of any
requested information concerning her child’s father, and further pro-
hibiting the reduction or denial of benefits to an applicant so attesting
as the defendant in their complaint. On appeal, Rivero has been substi-
tuted for Carter. We shall refer to both as "the Commissioner" and for
clarity shall use the feminine pronoun throughout this opinion when
referring to the Commissioner.
3During the litigation below, the federal AFDC program was replaced,
pursuant to federal law, by the Temporary Assistance for Needy Families
(TANF) program. Pub. L. 104-193, Title I, § 103(a)(1), Aug. 22, 1996,
110 Stat. 2112. The program will be referred to hereinafter as TANF.
4Smyth stated that she could not identify any of several men who
might be the father of her child to Virginia DSS officials. Montgomery
provided Virginia DSS officials with the names of two possible fathers,
but both men were proven not to be the father of her child by subsequent
blood tests. Montgomery could provide only the first name of one other
man whom she asserted might be the father of her children, and thus he
could not be identified.
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unless the Commissioner had substantial evidence the attestation was
false; and (5) attorney’s fees and costs under § 1988.
In June 1996, the district court denied the plaintiffs’ motion for
class certification but entered a preliminary injunction barring
enforcement of the paternity identification policy against the plain-
tiffs. In granting the preliminary injunction, the district court found
that the balancing of likely harms in considering the plaintiffs’ motion
for a preliminary injunction clearly favored the plaintiffs, that the
denial of benefits for noncooperation because of a claimant’s inability
to identify the father of her children contradicted the plain language
of then-applicable federal regulations, and that the plaintiffs were thus
likely to succeed on the merits.5 The preliminary injunction entered
by the court prohibited the Commissioner from denying welfare bene-
fits to the plaintiffs "based solely on their inability to provide [the
Commissioner] with paternity information after they have attested to
a lack of information." (J.A. at 62.) Three of the seven plaintiffs
(Lynn Winchester and her two children) were granted leave to dismiss
their claims and did so at that point.
On August 1, 1996, Smyth and Montgomery moved for summary
judgment, asserting that the language of 45 C.F.R. § 232.12(b) (1995)
could not be reconciled with the Commissioner’s paternity identifica-
tion policy, that the policy was therefore invalid under federal law,
and that they were entitled to a declaration to that effect and an
injunction permanently enjoining the Commissioner from denying
welfare benefits to otherwise eligible applicants in the same situation.
Thereafter, the Commissioner obtained a waiver from the Depart-
5Specifically, the district court noted that a federal regulation in force
at the time, 45 C.F.R. § 232.12(b) (1995), defined the cooperation in
establishing paternity required by 42 U.S.C.A. § 602(a)(26)(B) (West
1991) to include providing information "known to, possessed by, or rea-
sonably obtainable by the applicant or recipient" and "providing informa-
tion, or attesting to the lack of information, under penalty of perjury."
The court stated that it agreed with Smyth and Montgomery that this reg-
ulation "operate[d] to preclude states from disregarding an attestation to
lack of information by [a TANF] recipient or applicant." (J.A. at 60.)
Section 232.12 has since been repealed.
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ment of Health and Human Services (HHS) authorizing the definition
of noncooperation in paternity identification implemented by the pol-
icy.6 The waiver was conditioned on Virginia’s establishing criteria
for finding cooperation in those instances where it determines that the
applicant cannot reasonably be expected to know the identifying
information related to the child’s father. Smyth and Montgomery then
filed, on April 1, 1997, a supplemental memorandum in support of
their motion for summary judgment in which they reiterated the claim
that the Commissioner’s policy violated the Equal Protection Clause
of the Fourteenth Amendment and also claimed that the policy had
conflicted with federal regulations until the waiver was implemented
by the Commissioner in February 1997.
In her response to Smyth and Montgomery’s motion for summary
judgment and supplemental memorandum, the Commissioner stated
that she would not seek repayment of benefits paid to Smyth and
Montgomery prior to February 1, 1997, the date prior to which Smyth
and Montgomery assert the Commissioner’s policy conflicted with
federal regulations. On September 11, 1997, the day before the sched-
uled hearing on Smyth and Montgomery’s summary judgment
motion, the parties’ counsel agreed during a telephone conversation
that Smyth and Montgomery would consent to continue the date of
the hearing pursuant to a motion by the Commissioner and that the
Commissioner would not seek repayment of benefits paid to Smyth
and Montgomery between February 1, 1997 and the new date of the
hearing. An understanding of this agreement (the September 11 agree-
ment or the agreement) is contained in letters exchanged by counsel
shortly after their conversation. The district court granted the unop-
posed motion to continue the hearing.
As of August 1, 1998, the Commissioner modified the paternity
identification policy so that it no longer applies with respect to chil-
dren born before May 1996 (the date of the original policy modifica-
tion), provided that the welfare recipient declares under oath that she
does not know the identity of the father of her child. The August 1998
6The waiver the Commissioner received from HHS is not included in
the record on appeal. Because the parties agree that it was issued and as
to its scope, however, we will assume its existence for purposes of this
opinion.
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modification, in other words, made the 1996 identification policy
modification prospectively applicable only. As to children born after
May 1996, the policy challenged by Smyth and Montgomery remains
unaltered. Because both children still involved in the litigation at the
time of the 1998 modification (Angela Smyth and Casey Montgom-
ery) were born before May 1996, the district court dismissed Smyth
and Montgomery’s claims as moot under the modified policy. The
district court also found in its order of February 4, 2000 that the com-
munications between the parties regarding continuance of the sched-
uled hearing on the Commissioner’s summary judgment motion
constituted an "agreement" that the Commissioner would not seek
repayment of benefits paid to the plaintiffs between February 1, 1997
and the new date of that hearing. The district court based this finding
in large part on counsel for the Commissioner’s statements during a
status conference held before the district court on April 15, 1999.
During that conference, the court found, counsel for the Commis-
sioner "was not troubled by the admission that the parties previously
reached an agreement, but was concerned with the court ordering the
parties not to seek such benefits." (J.A. at 327.) "Accordingly," the
court wrote, "the dismissal order will declare that the defendant is
unable to seek repayment of TANF benefits because of the binding
agreement between the parties." (J.A. at 328.)
On March 6, 2000, the plaintiffs filed a motion for attorney’s fees
and costs, seeking a total of $195,074.54, which was granted in full
by the district court on October 17, 2000. In its order granting the
motion, the district court reiterated its finding that the parties had
come to an "agreement" wherein the Commissioner waived her right
to seek repayment of certain benefits from the plaintiffs in return for
the plaintiffs’ agreement not to contest continuance of the hearing on
the Commissioner’s motion for summary judgment. The district court
then found that because the plaintiffs had received a "judgment
against the defendant (the preliminary injunction)" and a "partial set-
tlement, which materially altered the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly
benefitted the plaintiff," (J.A. at 495-96), the plaintiffs had "pre-
vailed" for purposes of § 1988(b), and were entitled to attorney’s fees.
The district court awarded Smyth and Montgomery attorney’s fees in
the amount of $195,074.54. The Commissioner timely noted this
appeal from the order awarding fees.
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While this case was pending on appeal, the Supreme Court granted
certiorari in Buckhannon Board & Care Home v. West Virginia Dep’t
of Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835
(2001). This Court granted the Commissioner’s subsequent motion to
hold this case in abeyance pending the Supreme Court’s ruling. Buck-
hannon has now been decided and we have had the benefit of oral
argument in this case.
II.
The Commissioner argues that the district court erred in finding
that Appellees were prevailing parties in the action below and award-
ing Smyth and Montgomery attorney’s fees pursuant to 42 U.S.C.A.
§ 1988 (West Supp. 2001). Ordinarily, we review an award of attor-
ney’s fees for abuse of discretion. See Pierce v. Underwood, 487 U.S.
552, 557-63 (1988); Reich v. Walter W. King Plumbing & Heating,
Inc., 98 F.3d 147, 151 (4th Cir. 1996); 42 U.S.C.A. § 1988 (stating
that "the court, in its discretion, may allow the prevailing party . . .
a reasonable attorney’s fee") (emphasis added). The designation of a
party as a prevailing party, however, is a legal determination which
we review de novo. See Perry v. Bartlett, 231 F.3d 155, 163 (4th Cir.
2000).7
A.
Under the "American rule" ordinarily applicable in our legal sys-
tem, there is "a general practice of not awarding fees to a prevailing
party absent explicit statutory authority." Buckhannon Board & Care
Home v. West Virginia Dep’t of Health and Human Resources, 532
U.S. 598, 121 S. Ct. 1835, 1839 (2001). Congress has created such
statutory authority in § 1988(b), which reads in pertinent part as fol-
lows:
In any action or proceeding to enforce a provision of sec-
tion[ ] . . . 1983 [among other provisions], the court, in its
discretion, may allow the prevailing party, other than the
7Because our resolution of the prevailing party issue is dispositive, we
do not reach the Commissioner’s argument that the district court abused
its discretion in determining the amount of the attorney’s fees award.
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United States, a reasonable attorney’s fee as part of the costs
. . . .
42 U.S.C.A. § 1988(b). The term "prevailing party," as used in
§ 1988(b) and other fee-shifting provisions, is a "legal term of art,"
Buckhannon, 121 S. Ct. at 1839, and is "interpreted . . . consistently"
— that is, without distinctions based on the particular statutory con-
text in which it appears. Id. at 1839 n.4.
Smyth and Montgomery urge us to find that the district court prop-
erly characterized them as prevailing parties on either of two theories.
Either the preliminary injunction they were awarded by the district
court or the September 11 agreement, they argue, effected the "‘mate-
rial alteration of the legal relationship of the parties’ necessary to per-
mit an award of attorney’s fees." Id. at 1840 (quoting Texas State
Teachers Assn. v. Garland Ind. Sch. Dist., 489 U.S. 782, 792-93
(1989)). The preliminary injunction entered by the district court is
sufficient, they assert, to constitute an "enforceable judgment[ ] on the
merits . . . ." Id. They contend that the Commissioner’s modification
of the TANF policy after entry of that injunction is equivalent to a
recognition of and compliance with the injunction’s terms, and that
the injunction was thus sufficiently equivalent to a judgment on the
merits to be characterized as having effected a material alteration in
their legal relationship to the Commissioner. Alternatively, Smyth and
Montgomery argue, the district court’s reference to the September 11
agreement in its order renders that agreement "judicially sanctioned,"
and permits an award of attorney’s fees on that basis. Id. Specifically,
they contend that the district court’s finding that the parties entered
into a "binding agreement" throws sufficient judicial weight behind
the agreement’s terms to meet the standard enunciated in Buckhannon
and earlier cases.
B.
Because we have not previously considered Buckhannon in the
context presented here, we pause to review briefly the factual and pro-
cedural circumstances of that case. Buckhannon involved a challenge
to the closing of care homes (facilities that provide "assisted living"
to their residents) that had failed an inspection by the West Virginia
State Fire Marshal because, under state law, some of the homes’ resi-
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dents were incapable of "self-preservation" (defined essentially as the
ability to escape a dangerous situation under one’s own power). Id.
at 1838. Buckhannon Board and Care Home, Inc., proprietor of the
homes, instituted an action seeking declaratory and injunctive relief
on the ground that the self-preservation requirement violated federal
law, specifically the Fair Housing Amendments Act of 1988, 42
U.S.C.A. §§ 3601 et seq. The West Virginia Department of Health
and Human Resources "agreed to stay enforcement of the cease and
desist orders pending resolution of the case . . . ." Id. Before the case
was resolved on the merits, West Virginia eliminated the self-
preservation requirement, and the case was dismissed as moot. Id.
Buckhannon moved for costs and attorney’s fees, which were denied
at the trial level and by this Circuit on appeal.
The Supreme Court affirmed, holding that the circumstances of the
case could not support a finding that Buckhannon was a prevailing
party for purposes of awarding attorney’s fees. Id. at 1840. The
Supreme Court specifically rejected the "catalyst theory," concluding
that a "defendant’s voluntary change in conduct, although perhaps
accomplishing what the plaintiff sought to achieve by the lawsuit,
lacks the necessary judicial imprimatur on the change" to make that
plaintiff a prevailing party. Id.
The Buckhannon Court considered the character of the judicial
relief that a party must receive to satisfy the prevailing party standard,
finding the catalyst theory problematic in part because "[e]ven under
a limited form of the ‘catalyst theory,’ a plaintiff could recover attor-
ney’s fees if it established that the ‘complaint had sufficient merit to
withstand a motion to dismiss for lack of jurisdiction or failure to
state a claim on which relief may be granted.’" Id. (quoting Brief for
United States as Amicus Curiae). Such preliminary successes, the
Court stated, are "not the type of legal merit that our prior decisions,
based upon plain language and Congressional intent, have found nec-
essary." Id. In support of this proposition, the Court pointed to its
decision in Hewitt v. Helms, 482 U.S. 755 (1987), where it held that
"an interlocutory ruling that reverses a dismissal for failure to state a
claim ‘is not the stuff of which legal victories are made.’" Buckhan-
non, 121 S. Ct. at 1840 (citing Hewitt, 482 U.S. at 760).
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C.
A preliminary injunction such as that granted to Smyth and Mont-
gomery below is closely analogous, for these purposes, to the exam-
ples of judicial relief deemed insufficient in Buckhannon. While
granting such an injunction does involve an inquiry into the merits of
a party’s claim, see Blackwelder Furniture Co. of Statesville v. Seilig
Mfg. Co., 550 F.2d 189, 195 (4th Cir. 1977) (enunciating the test for
granting a preliminary injunction, which includes an examination of
the likelihood the plaintiff will succeed on the merits), and is, like any
court order, "enforceable," the merits inquiry in the preliminary
injunction context is necessarily abbreviated. Our precedent estab-
lishes that a plaintiff may, depending on the circumstances, need only
to establish that his case presents a "substantial question" to obtain
preliminary injunctive relief. Safety-Kleen, Inc. (Pinewood) v. Wyche,
No. 00-2170, slip op. at 19, ___ F.3d ___ (4th Cir. Dec. 19, 2001)
("‘If the harm balance tips decidedly in favor of the plaintiff, a pre-
liminary injunction will be granted if the plaintiff has raised questions
going to the merits so serious, substantial, difficult and doubtful, as
to make them fair ground for litigation and thus for more deliberate
investigation. . . .’ In other words, the plaintiff’s case must at bottom
present a ‘substantial question’") (quoting Rum Creek Coal Sales, Inc.
v. Caperton, 926 F.2d 353, 359 (4th Cir. 1991)); MicroStrategy, Inc.
v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (same; noting
also that "if the plight of the defendant [is] not substantially different
from that of the plaintiffs, that is, if there is no imbalance of hardship
in favor of the plaintiff, then the probability of success begins to
assume real significance, and interim relief is more likely to require
a clear showing of a likelihood of success") (alteration in original)
(internal quotation marks omitted).
At the most, a party seeking a preliminary injunction may have to
demonstrate "a ‘strong showing of likelihood of success’ or a ‘sub-
stantial likelihood of success’ by ‘clear and convincing evidence’ in
order to obtain relief." MicroStrategy, 245 F.3d at 340. A district
court’s determination that such a showing has been made is best
understood as a prediction of a probable, but necessarily uncertain,
outcome. Cf. 11A Charles Alan Wright et al., Fed. Prac. & Proc.:
Civil 2d § 2948.3 at 188 (West 1995) (stating that "[a]ll courts agree
that plaintiff must present a prima facie case but need not show that
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he is certain to win"). The fact that a preliminary injunction is granted
in a given circumstance, then, by no means represents a determination
that the claim in question will or ought to succeed ultimately; that
determination is to be made upon the "deliberate investigation" that
follows the granting of the preliminary injunction.
Moreover, in granting a preliminary injunction a court is guided
not only by its assessment of the likely success of the plaintiff’s
claims, but also by other considerations, notably a balancing of likely
harms. Safety-Kleen, No. 00-2170, slip op. at 19 (explaining that "‘the
likelihood of irreparable harm to the plaintiff’ is the first factor that
a court should consider . . . [and the] next step is to balance the likeli-
hood of harm to the plaintiff against the likelihood of harm to the
defendant"; only then should the likelihood of success on the merits
be considered) (quoting Direx Israel, Ltd. v. Breakthrough Med.
Corp., 952 F.2d 802, 812 (4th Cir. 1991)). But cf., e.g., United States
v. Kayser Roth Corp., 272 F.3d 89, 101 n.14 (1st Cir. 2001) (stating
that the "[l]ikelihood of success is the touchstone of the preliminary
injunction inquiry") (alteration in original) (internal quotation marks
omitted). In weighing these factors, a court should bear in mind that
the factors "must work in conjunction," Ciena Corp. v. Jarrard, 203
F.3d 312, 323 (4th Cir. 2000), and a high likelihood of harm to the
plaintiff may reduce the extent to which that plaintiff must demon-
strate a likelihood of success on the merits. Id. (stating that "[i]f the
‘hardship balance tilts sharply and clearly in the plaintiff’s favor, the
required proof of likelihood of success is substantially reduced.’")
(quoting Direx, 952 F.2d at 817); cf. Steakhouse, Inc. v. Raleigh, 166
F.3d 634, 637 (4th Cir. 1999) (stating that "[t]he more the balance of
harms leans away from the plaintiff, the stronger his showing on the
merits must be"). A plaintiff’s burden to show a likelihood of success
on the merits, in other words, varies according to the harm the plain-
tiff would be likely to suffer absent an injunction. While this frame-
work may be well suited to reconciling the practical, equitable, and
legal concerns that face a court determining whether to grant a party
interim relief, cf. Ciena, 203 F.3d at 323 (identifying the Blackwelder
factors as leading to an "overall equitable determination"), it renders
such relief an unhelpful guide to the legal determination of whether
a party has prevailed.8
8Our Circuit’s current framework for the preliminary injunction
inquiry, specifically the establishment of the "analytical order, hierarchy
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The proceedings below in this case present an example of the pre-
liminary, incomplete nature of the merits examination and the inter-
play between the "likely harms" and "likelihood of success" factors
in the preliminary injunction inquiry. Applying the Blackwelder test,
the district court found that the balancing of likely harms strongly
favored Smyth and Montgomery because the loss of benefits would
be a severe hardship for them. The district court’s decision to enter
an injunction reflected that finding, as well as an assessment of the
likelihood of success of Smyth and Montgomery’s claims. The inter-
play of these equitable and legal considerations and the less stringent
assessment of the merits of claims that are part of the preliminary
injunction context belie the assertion that the district court’s decision
to grant a preliminary injunction was an "enforceable judgment[ ] on
the merits" or something akin to one for prevailing party purposes.
Buckhannon, 121 S. Ct. at 1840. For the reasons given above, we hold
that the preliminary injunction entered by the district court does not
satisfy the prevailing party standard of § 1988(b).9
of importance, . . . comparative weights," and the intertwining of consid-
eration of the factors in our prior cases has been criticized as a departure
(in form if not necessarily in practice) from Supreme Court precedent.
Safety-Kleen, Inc., No. 00-2170, slip op. at 33-38 (Luttig, J., concurring).
Whatever the merits of this argument, it does not alter our conclusion
here. The preliminary injunction inquiry, because of the preliminary,
incomplete examination of the merits involved and the incorporation (if
not the predominance) of equitable factors, is ill-suited to guide the pre-
vailing party determination regardless of how it is formulated.
9Smyth and Montgomery contend that some preliminary injunctions
are sufficiently based on the merits to serve as a basis for an award of
attorney’s fees to the recipient as a prevailing party. They would distin-
guish such injunctions from those such as the injunction entered in Smith
v. Univ. of North Carolina, 632 F.2d 316 (4th Cir. 1980), which they
argue did not address the merits, but was entered "merely to maintain the
status quo." Id. at 347. They contend the district court did examine the
merits of their case and reached a result favorable to them, and their
injunction is thus materially different from Smith’s.
Addressing a preliminary injunction entered in a Title VII action, this
Court found in Smith that the grant of the injunction to the plaintiff did
not render her a prevailing party for purposes of awarding attorney’s
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D.
Smyth and Montgomery next argue that they may be considered
prevailing parties under the Supreme Court’s reasoning in Buckhan-
non regarding consent decrees by virtue of the September 11 agree-
ment, which they assert was incorporated in the district court’s order
and thus stamped with judicial imprimatur. See id. (stating that
"court-ordered consent decrees" may meet the prevailing party stan-
dard). The agreement, they argue, gave them some of the relief they
sought in bringing this action and was approved by the district court,
rendering it equivalent, or at least analogous, to a consent decree.
fees. There had not been, we reasoned, "a final disposition in favor of the
party claiming it had prevailed." Id. at 349. Smith did not, however, ren-
der preliminary injunctions categorically deficient for prevailing party
purposes. Rather, Smith only held that the plaintiff is not a prevailing
party where the plaintiff obtains a preliminary injunction but ultimately
fails to achieve the desired result. See id. at 346 (noting that "on none of
her claims has [the plaintiff] ultimately obtained what she sought"); id.
at 352 (stating that "just because an injunction was issued properly does
not signify that a defendant must incur the costs of its issuance when a
court has eventually proclaimed him to be innocent of discriminatory
conduct"); see also Disabled in Action v. Mayor & City Council of Balti-
more, 685 F.2d 881, 885 (4th Cir. 1982) (stating that Smith "held only
that a party was not entitled to attorney’s fees in connection with her suc-
cessful application for a preliminary injunction, since the trial court ulti-
mately ruled for her adversary on the merits").
The conclusion that Smith does not in all cases preclude prevailing
party status on the basis of a preliminary injunction, however, is not sup-
port for the inverse of that conclusion — that a preliminary injunction is
in some cases a proper basis for prevailing party status. Moreover, the
Smith court did consider the characteristics of a preliminary injunction
that we believe make such an injunction an improper basis for the con-
clusion that a party has prevailed. See Smith, 632 F.2d at 347 (noting that
the preliminary injunction hearing involved, at the most, "a prognosis of
probable or possible success" and that the balancing of likely harms had
favored Smith at the preliminary injunction stage). Whatever its scope,
then, Smith does not support Smyth and Montgomery’s position, and it
is consistent with our holding here.
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We note initially that neither of the Commissioner’s two waivers
of the right to seek recoupment of benefits paid to Smyth and Mont-
gomery is easily construed as a settlement. The initial waiver, made
in her response to Smyth and Montgomery’s motion for summary
judgment, was entirely unilateral and thus cannot be so construed.
The Commissioner stated therein that she would not seek repayment
of benefits paid to Smyth and Montgomery prior to February 1, 1997.
No evidence suggests that this waiver was anything but a voluntary
gesture by the Commissioner. Indeed, Smyth and Montgomery might
nearly as credibly suggest that the Commissioner’s voluntary change
to the paternity identification policy represented a "settlement" of
their claims, as the actions were equally unilateral. Buckhannon
teaches that such a voluntary, unilateral act is not enough for the
opposing party to be said to have prevailed. Buckhannon, 121 S. Ct.
at 1840 ("[a] defendant’s voluntary change in conduct, although per-
haps accomplishing what the plaintiff sought to achieve by the law-
suit, lacks the necessary judicial imprimatur on the change").
Nor is the September 11 agreement, in which the Commissioner
again waived the right to seek recoupment of benefits, easily con-
strued as a settlement. The Commissioner, through counsel, agreed
therein not to seek repayment of benefits paid to Smyth and Mont-
gomery between February 1, 1997 and the rescheduled hearing date
for the summary judgment motion; that is, she agreed to extend her
previously executed unilateral waiver. This agreement was more in
the nature of a procedural quid pro quo than a settlement of any of
Smyth and Montgomery’s claims. The Commissioner agreed merely
to maintain the status quo (that is, payment of benefits to Smyth and
Montgomery without the threat of subsequent action to recover those
benefits) in return for an uncontested continuance of the hearing date.
Even if the September 11 agreement were properly characterized
as a partial settlement, however, Smyth and Montgomery would have
to contend with the Buckhannon Court’s disapproval of private settle-
ments as a basis for prevailing party status. Although the Supreme
Court suggested in Maher v. Gagne, 448 U.S. 122, 129 (1980), that
a party may prevail for purposes of § 1988 by virtue of a private set-
tlement and has repeated that suggestion elsewhere, see, e.g., Farrar
v. Hobby, 506 U.S. 103, 111 (1992) (characterizing Maher as allow-
ing attorney’s fees award for private settlement); see also S-1 & S-2
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ex rel. P-1 & P-2 v. State Bd. of Ed. of North Carolina, 21 F.3d 49,
51 (4th Cir. 1994) (stating that "an enforceable judgment, consent
decree, or settlement giving some of the relief sought" is necessary
for prevailing party status) (emphasis added), the Buckhannon Court
has since clarified the law on this point. In Buckhannon, the Court
stated that its prior "dicta" suggesting that private settlements could
support prevailing party status had "ignore[d] that Maher only ‘held
that fees may be assessed . . . after a case has been settled by the entry
of a consent decree.’" Buckhannon, 121 S. Ct. at 1840 n.7 (quoting
Evans v. Jeff D., 475 U.S. 717, 720 (1986) (emphasis and second
alteration in original)). The Court then distinguished private settle-
ments from consent decrees on the basis of the court’s role in the dis-
position of the case. "Private settlements," the Court noted, "do not
entail the judicial approval and oversight involved in consent
decrees." Id. The Court further noted that "federal jurisdiction to
enforce a private contractual settlement will often be lacking unless
the terms of the agreement are incorporated into the order of dis-
missal." Id.
Smyth and Montgomery do not argue that the district court’s order
dismissing this case as moot was a consent decree. They do argue,
however, that the September 11 agreement "was judicially sanctioned
and incorporated into the court’s final judgment" (Br. of Appellants
at 10) by virtue of that order — in other words, that the order was
equivalent to a consent decree for the purposes of determining
whether they were prevailing parties. In some instances, they argue,
outcomes not expressly characterized as consent decrees will never-
theless entail the judicial approval and oversight involved in consent
decrees. The resolution of this case, they contend, presents such a sit-
uation. For the reasons set out below, we conclude that the precondi-
tion to such a finding — that the terms of the agreement be made part
of the district court’s order — does not exist, and therefore we reject
this argument without determining whether the district court’s order
would render them prevailing parties had the terms agreed to by the
parties been made a part of it.
Before turning to the question of whether the September 11 agree-
ment and the district court’s order below were, in combination, equiv-
alent to a consent decree, it is helpful briefly to examine the relevant
differences between settlements and consent decrees generally, as we
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conclude that these differences must inform the Supreme Court’s
determination that a line should be drawn between them in the pre-
vailing party context. A consent decree has elements of both judg-
ment and contract, a dual character that "result[s] in different
treatment for different purposes." Local No. 93, Int’l Assn. of Fire-
fighters, AFL-CIO v. Cleveland, 478 U.S. 501, 519 (1986) (describing
the "hybrid nature" of consent decrees); United States v. ITT Conti-
nental Baking Co., 420 U.S. 223, 237 n.10 (1975) (stating that
"[c]onsent decrees and orders have attributes both of contracts and of
judicial decrees") (citing United States v. Swift & Co., 286 U.S. 106
(1932)). Thus, a consent decree
embodies an agreement of the parties and thus in some
respects is contractual in nature. But it is an agreement that
the parties desire and expect will be reflected in, and be
enforceable as, a judicial decree that is subject to the rules
generally applicable to other judgments and decrees.
Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 378 (1992)
(citing Ry. Emp. Dep’t, AFL-CIO v. Wright, 364 U.S. 642, 650-51
(1961)); see also Alexander v. Britt, 89 F.3d 194, 199 (4th Cir. 1996).
The parties to a consent decree expect and achieve a continuing
basis of jurisdiction to enforce the terms of the resolution of their case
in the court entering the order. See, e.g., United States v. Miami, 664
F.2d 435, 439-40 (5th Cir. 1981) (en banc) (concurring opinion of
Rubin, J., joined by Brown, Anderson, Randall, and Thomas A. Clark,
JJ.) ("A consent decree, although founded on the agreement of the
parties, is a judgment. It has the force of res judicata, protecting the
parties from future litigation. As a judgment, it may be enforced by
judicial sanctions, including citation for contempt if it is violated.").
Because it is entered as an order of the court, the terms of a consent
decree must also be examined by the court. As Judge Rubin noted in
United States v. Miami,
Because the consent decree does not merely validate a com-
promise but, by virtue of its injunctive provisions, reaches
into the future and has continuing effect, its terms require
more careful scrutiny. Even when it affects only the parties,
the court should, therefore, examine it carefully to ascertain
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not only that it is a fair settlement but also that it does not
put the court’s sanction on and power behind a decree that
violates Constitution, statute, or jurisprudence.
664 F.2d at 441 (Rubin, J., concurring). In other words, a court enter-
ing a consent decree must examine its terms to ensure they are fair
and not unlawful.
By contrast, a private settlement, although it may resolve a dispute
before a court, ordinarily does not receive the approval of the court.
Cf., e.g., Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d
828, 835 (3d Cir. 1995) ("Our federal courts have neither the author-
ity nor the resources to review and approve the settlement of every
case brought in the federal court system. There are only certain desig-
nated types of suits, for instance consent decrees, class actions, share-
holder derivative suits, and compromises of bankruptcy claims where
settlement of the suit requires court approval."). Nor is a private set-
tlement agreement enforceable by a district court as an order of the
court unless the obligation to comply with its terms is "made part of
the order of dismissal — either by separate provision (such as a provi-
sion ‘retaining jurisdiction’ over the settlement agreement) or by
incorporating the terms of the settlement agreement in the order."
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994).
If the obligation to comply with the terms of the agreement is not
made part of an order of the court, jurisdiction to enforce the settle-
ment agreement will not exist absent some independent basis of juris-
diction. Id.
These characteristic features of consent decrees and private settle-
ments are significant in the prevailing party context. A consent
decree, because it is entered as an order of the court, receives court
approval and is subject to the oversight attendant to the court’s
authority to enforce its orders, characteristics not typical of settlement
agreements. The Supreme Court’s admonition that consent decrees
may satisfy the prevailing party standard while private settlements
ought not be so construed is thus consistent with the general purposes
and effects of the two forms of resolution of disputes. Generally, the
Supreme Court has stated, a determination of "legal merit" is neces-
sary for an award of attorney’s fees. Buckhannon, 121 S.Ct. at 1840,
1841 (stating that prior Supreme Court cases establish a "‘merit’
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requirement"). A consent decree, because of its "hybrid nature," is a
special case; although it is a privately negotiated form of relief and
"does not always include an admission of liability by the defendant,"
id., it nevertheless involves judicial approval and oversight that may
suffice to demonstrate the requisite "court-ordered chang[e] [in] the
legal relationship between [the plaintiff] and the defendant." Buck-
hannon, 121 S. Ct. 1840 (alteration in original) (internal quotation
marks omitted).10
Although the district court’s order below did not describe its dispo-
sition of the case as a "consent decree" (or a "consent order" or "con-
sent judgment"), that does not necessarily end the inquiry. We doubt
that the Supreme Court’s guidance in Buckhannon was intended to be
interpreted so restrictively as to require that the words "consent
decree" be used explicitly. Where a settlement agreement is embodied
in a court order such that the obligation to comply with its terms is
court-ordered, the court’s approval and the attendant judicial over-
sight (in the form of continuing jurisdiction to enforce the agreement)
may be equally apparent. We will assume, then, that an order contain-
ing an agreement reached by the parties may be functionally a consent
decree for purposes of the inquiry to which Buckhannon directs us,
even if not entitled as such. See Buckhannon, 121 S. Ct. at 1840
10We recognize that this Circuit has in the past upheld awards of attor-
ney’s fees based on private settlements not integrated into consent
decrees or court orders. See, e.g., Disabled in Action v. Mayor & City
Council of Baltimore, 685 F.2d 881, 885-86 (4th Cir. 1982) (upholding
determination that plaintiffs who settled and dismissed discrimination
action were prevailing parties); Young v. Kenley, 641 F.2d 192, 195 (4th
Cir. 1981) (same). These decisions, however, even if they survived our
rejection of the catalyst theory in S-1 & S-2 ex rel. P-1 & P-2 v. State
Bd. of Ed. of North Carolina, 21 F.3d 49 (4th Cir. 1994) (en banc)
(adopting dissenting opinion of Wilkinson, J., 6 F.3d 160, 168-72)
(rejecting catalyzation of post-litigation changes in a defendant’s conduct
as a basis for prevailing party status), do not survive Buckhannon’s rejec-
tion of private settlements as a basis for prevailing party status, Buckhan-
non, 121 S. Ct. at 1840. Buckhannon’s reasoning indicates that without
a "judicially sanctioned change in the legal relationship of the parties,"
a party has not prevailed. Id.
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(identifying the "judicial approval and oversight involved in consent
decrees" as distinguishing them from private settlements).11
We turn, therefore, to the question of whether the terms of the Sep-
tember 11 agreement were in fact made an enforceable part of the dis-
trict court’s order, as those of a consent decree would be. The issue
of when the obligation to comply with the terms of a settlement agree-
ment has been made part of an order of the court was examined by
the Supreme Court in Kokkonen. Addressing a question of the scope
of ancillary jurisdiction, the Supreme Court held that neither of the
traditional "heads" of ancillary jurisdiction — to permit disposition by
a single court of factually interdependent claims, and to enable a court
to manage its proceedings, vindicate its authority, and protect its
decrees — could support an assertion of jurisdiction to enforce a set-
tlement agreement entered into by the parties and resulting in dis-
missal of the case pursuant to a stipulation by the parties. Kokkonen,
511 U.S. at 379-81. The second "head" of ancillary jurisdiction, the
Court reasoned, could not support the assertion because a court’s need
to protect its orders does not entail the power to enforce an agreement
that was not made part of a court order in the first place. Id. The situa-
tion would have been different, the Court noted, if the obligation to
11Although a district court’s incorporation of an agreement’s terms or
retention of jurisdiction in its order may demonstrate the degree of
approval and oversight identified by the Supreme Court in Buckhannon
as accompanying consent decrees, approval and oversight of an agree-
ment alone will not suffice to make a party a prevailing party. The party
must likewise demonstrate that it has received some of the relief it sought
in bringing the lawsuit in the first place. See, e.g., Maher v. Gagne, 448
U.S. 122, 126 (upholding award of attorney’s fees where consent decree
increased level, for purposes of AFDC benefits calculation, of work-
related expenses deductible from income and gave AFDC recipients right
to prove that actual expenses exceeded standard deduction where plain-
tiff had claimed that state regulations denied her credit for work-related
expenses in violation of federal law). An agreement that the plaintiff will
join a motion to dismiss a lawsuit in return for the defendant’s promise
not to seek sanctions against the plaintiff, for instance, would not render
the plaintiff a prevailing party even if incorporated into an enforceable
court order. Because we find the "settlement" achieved by Smyth and
Montgomery insufficient to support prevailing party status, we do not
discuss the nature of the "relief" they achieved thereby.
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comply with the terms of the settlement had been made part of the
order; in that case, a breach of the agreement would also be a breach
of the order, and the court could properly exercise its power to
enforce the order. Id. at 381. We find Kokkonen’s reasoning instruc-
tive here. A court’s responsibility to ensure that its orders are fair and
lawful stamps an agreement that is made part of an order with judicial
imprimatur, and the continuing jurisdiction involved in the court’s
inherent power to protect and effectuate its decrees entails judicial
oversight of the agreement. Where the obligation to comply with the
terms of the agreement is not enforceable as an order of the court but
only as a contractual obligation, neither judicial approval nor over-
sight are ordinarily involved.12
The obligation to comply with a settlement’s terms must be
expressly made part of a court’s order for jurisdiction to enforce the
settlement after dismissal of the action to exist. See Kokkonen, 511
U.S. at 381 ("The judge’s mere awareness and approval of the terms
of the settlement agreement do not suffice to make them part of his
order."). Either incorporation of the terms of the agreement or a sepa-
rate provision retaining jurisdiction over the agreement will suffice
for this purpose. Id. Where a court merely recognizes the fact of the
parties’ agreement and dismisses the case because there is no longer
a dispute before it, the terms of the agreement are not made part of
the order and consequently will not serve as a basis of jurisdiction.
12Some courts have suggested or identified circumstances where a dis-
trict court might "approve" a settlement without making an obligation to
comply with its terms part of its order dismissing the case. See, e.g., Kok-
konen, 511 U.S. at 381 ("judge’s mere awareness and approval of the set-
tlement agreement do not suffice to make them part of his order"); In re
Phar-Mor Securities Litigation, 172 F.3d 270, 274-75 (3d Cir. 1999)
(holding that although district court approved terms of settlement, it did
not incorporate the terms of the settlement or retain jurisdiction over it,
and therefore there was no jurisdiction to enforce it); Miener, 62 F.3d at
1127 (same). Although no "approval" by the court of the agreement
reached between the parties is apparent here, we note that even such
approval by the court of a settlement agreement would not create, as
these cases demonstrate, judicial "oversight" of that agreement resulting
from continuing jurisdiction over it, one of several factors that set con-
sent decrees apart from private settlements. Buckhannon, 121 S. Ct. at
1840 n.7.
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The rule that a court’s order must embody a settlement agreement
to serve as a basis of jurisdiction to enforce the agreement is "adhered
[to] strictly . . . ." In re Phar-Mor, Inc. Securities Litigation, 172 F.3d
270, 274 (3d Cir. 1999). This rule is interpreted to require that the dis-
trict court give a clear indication that it is incorporating the terms of
the agreement into that order or retaining jurisdiction over the agree-
ment. See, e.g., In re Bond, 254 F.3d 669, 675-76 & n.4 (7th Cir.
2001) (stating that Kokkonen appeared to require "express" incorpora-
tion or retention; holding that district court’s acting as if it had
retained jurisdiction did not satisfy even the more lenient standard
established in Seventh Circuit before Kokkonen and therefore declin-
ing to resolve whether Kokkonen modified that standard); In re Phar-
Mor, 172 F.3d at 274 (holding that district court’s dismissal "pursuant
to the terms of the settlement agreement" did not incorporate the
terms of the settlement or retain jurisdiction); Scelsa v. City Univ. of
N.Y., 76 F.3d 37, 41 (2d Cir. 1996) (stating that district court has
jurisdiction only if the dismissal order expressly reserved authority to
enforce the agreement, or incorporated the agreement into the order;
holding, where dismissal order stated that "action is dismissed with
prejudice and without costs to any party, except as set forth in the Set-
tlement Agreement," jurisdiction to enforce did not exist under Kok-
konen); Miener v. Missouri Dep’t of Mental Health, 62 F.3d 1126,
1127-28 (8th Cir. 1995) (holding, where dismissal order at issue
acknowledged that "[a]ll matters . . . have been settled and resolved"
but did not mention the settlement agreement itself or its terms, that
district court did not have jurisdiction to enforce the order); Hagestad
v. Tragesser, 49 F.3d 1430, 1432-33 (9th Cir. 1995) (holding that dis-
missal order stating "action has been settled" did not incorporate the
settlement agreement); Lucille v. City of Chicago, 31 F.3d 546, 548-
49 (7th Cir. 1994) (determining that a judgment "entered in accor-
dance with" a settlement agreement did not incorporate settlement);
cf. Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 203
F.3d 291, 299 (4th Cir.), cert. denied, 531 U.S. 918 (2000) (holding
that an agreed-to provision stating that "[t]he Court retains jurisdic-
tion to enforce the settlement of the parties and the prior Orders in
this case" satisfied Kokkonen’s requirement that a court either retain
jurisdiction or incorporate the terms of the settlement agreement into
its order); Bell v. Schexnayder, 36 F.3d 447, 448 (5th Cir. 1994)
(holding that the district court retained jurisdiction by including lan-
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guage in its dismissal order that gave the parties the right to reopen
the judgment if a settlement was not consummated within sixty days).
We have no trouble concluding that the district court’s order in this
case does not meet the test enunciated in Kokkonen. The district
court’s mention of the September 11 agreement in its final order,
although it states that the Commissioner is unable to seek repayment
of TANF benefits because of the binding agreement between the par-
ties, does not make the obligation to comply with the terms of that
agreement part of the order. First, nothing in the court’s order could
be construed as a retention of jurisdiction to enforce the agreement.
Moreover, no language in the court’s order clearly compels compli-
ance with the terms agreed to by the parties. The district court’s order
in this case consists of two parts. In the first part, the court made two
findings — that the Commissioner had revised the policy at issue so
that Smyth and Montgomery were no longer disqualified from receiv-
ing benefits, and that the Commissioner could not seek repayment of
TANF benefits paid to the plaintiffs under the prior policy. The sec-
ond of these findings was stated as follows: "The court further finds
that the defendant may not seek repayment of TANF benefits paid to
the plaintiffs under the policy." (J.A. at 321) (emphasis added). The
court went on to note the agreement of the parties as the source of this
obligation, stating that the obligation existed because, "[b]y agree-
ment of the parties . . . the [Commissioner] extended th[e] waiver" of
the right to seek repayment of benefits from Smyth and Montgomery.
Id. The second part of the court’s order comes under the heading
"ADJUDGED AND ORDERED," and contains statements that the
case is moot for prudential reasons and the court lacks jurisdiction,
that the Commissioner’s motion to dismiss the case is granted, and
that the court reserves jurisdiction to decide the issue of attorney’s
fees. (J.A. at 322.)
Nothing in this order suggests that the terms of the parties’ agree-
ment are "incorporated" into the order by a clear indication that they
must be complied with pursuant to the order itself, as opposed to the
principles of contractual obligation. The court’s findings are most
properly read as noting and reciting the agreement in question as a
component of its analysis of the mootness of the case after the Com-
missioner’s modification of the policy, rather than incorporating the
agreement’s terms. Examination of the Memorandum Opinion accom-
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panying the order supports this conclusion. The district court noted in
its Memorandum Opinion that the Commissioner had expressed con-
cern shortly before entry of the final order with the court’s "ordering
the [Commissioner] not to seek . . . benefits." (J.A. at 327.) When
"asked whether there was anything wrong with reciting" the fact of
the agreement and its effect in the order, however, the Commissioner
stated that there was not. Id. The court’s finding in the order that the
Commissioner may not seek repayment of TANF benefits is therefore
properly interpreted as a "recit[ation]" of the agreement rather than an
approval and incorporation the agreement’s terms. Cf. Kokkonen, 511
U.S. at 381 (noting that the agreement reached by the parties there
was "recited, on the record, before the District Judge").13
The district court also stated in its Memorandum Opinion that "the
defendant is unable to seek repayment of TANF benefits because of
the binding agreement between the parties" (J.A. at 328). It is thus
apparent that the district court itself, plainly best situated to define the
intent of its order, believed that the obligation to comply with the
terms of the agreement stemmed from the agreement rather than its
order.
We conclude that the judicial approval and oversight identified by
the Supreme Court as involved in consent decrees are lacking where,
as here, a settlement agreement (if the September 11 agreement can
be categorized as such) is neither incorporated explicitly in the terms
of the district court’s dismissal order nor the subject of a provision
retaining jurisdiction. The September 11 agreement was not, in other
words, made a part of a court order and accordingly cannot be
equated with a consent decree. Smyth and Montgomery therefore can-
13We note that if the district court had incorporated the obligation to
comply with the September 11 agreement in its order, the colloquy
described here would raise a serious question as to whether both parties
consented to incorporation of that agreement into a court order. Cf. Local
No. 93, Int’l Assn. of Firefighters, AFL-CIO v. Cleveland, 478 U.S. 501,
522 (1986) (citing United States v. Ward Baking Co., 376 U.S. 327
(1964), for the proposition that a court "cannot enter [a] consent decree
to which one party has not consented"). We need not address this issue,
however, because we conclude that this settlement agreement was not
incorporated into the district court’s order.
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not be said to have prevailed, and we need not inquire whether other
aspects of this agreement might distinguish it from those consent
decrees sufficient to support a finding that a party has prevailed. To
hold that Smyth and Montgomery are entitled to attorney’s fees in this
situation would defeat the Supreme Court’s admonition in Buckhan-
non that § 1988 does not "authorize[ ] federal courts to award attor-
ney’s fees to a plaintiff who, by simply filing a nonfrivolous but
nonetheless potentially meritless lawsuit (it will never be determined),
has reached the sought-after destination without obtaining any judicial
relief." Buckhannon, 121 S. Ct. at 1841 (internal quotation marks
omitted).
III.
We conclude that the district court erred in characterizing Smyth
and Montgomery as prevailing parties and granting them attorney’s
fees on that basis. The district court’s order granting attorney’s fees
is accordingly reversed.
REVERSED
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