                                     UNPUBLISHED ORDER
                                Not to be cited per Circuit Rule 53


                  United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604
                                    Submitted October 5, 2005
                                    Decided October 24, 2005


                                             Before

                      Hon. FRANK H. EASTERBROOK, Circuit Judge

                      Hon. DIANE P. WOOD, Circuit Judge

                      Hon. ANN CLAIRE WILLIAMS, Circuit Judge



ABRAHAM V. SONII and RUFUS JONES,                             Appeal from the United States
     Plaintiffs-Appellants,                                   District Court for the Northern
                                                              District of Illinois, Eastern
No.    05-2695                        v.                      Division.

GENERAL ELECTRIC COMPANY,                                     No. 95 C 5370
     Defendant-Appellee.                                      Joan B. Gottschall, Judge.




                                              Order

         Our opinion dismissing a prior appeal held that the judgment would not be final until the
district court resolved all questions about Rule 37 sanctions (which has now been done) and
entered a final judgment. The terms of the judgment would control entitlement to attorneys' fees
under Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001). We remarked that

       The district judge could have implemented the parties' [settlement] agreement in at least
       three ways: (1) a one-line order of dismissal; (2) a dismissal reserving jurisdiction to
       enforce the underlying contract; (3) a dismissal incorporating the settlement contract as a
       judgment of the court. These would have different consequences under Buckhannon and
       T.D. [v. LaGrange School District, 349 F.3d 469 (7th Cir. 2003)]: the first would not
       make the plaintiffs prevailing parties; the third would do so; and the second would be
       ambiguous, for neither Buckhannon nor T.D. definitively resolves the consequences of an
       order that suffices to preserve federal jurisdiction to enforce the pact, see Kokkonen v.
No. 05-2695                                                                            Page 2


       Guardian Life Insurance Co. of America, 511 U.S. 375 (1994), but still treats it as a
       private contract rather than a judgment.

359 F.3d 448, 449-50 (7th Cir. 2004). The district court received briefs from the parties and
entertained argument. After considering these submissions, she chose Option No. 1: Straight
dismissal. The judge allowed that this would disappoint plaintiff's expectation about attorneys'
fees but believed that the form of the settlement agreement required this approach. General
Electric had not agreed to submit the settlement to judicial approval, supervision, or
enforcement; instead the settlement papers provided that plaintiff would dismiss the complaint
outright. The straight dismissal led the district judge to deny plaintiff's request for an award of
attorneys' fees other than those under Rule 37.

        On appeal, this time from a final decision, plaintiff contends that the district judge failed
to follow our mandate. That contention is unpersuasive for two reasons. One is that we did not
issue a traditional mandate; instead we dismissed the appeal for lack of appellate jurisdiction.
The second reason is that even if our opinion were given the force of a mandate, it made it clear
that the district judge had a choice to make. The outcome was not foreordained; otherwise we
would have had jurisdiction. The judgment was non-final precisely because discretion had to be
exercised.

        Now the question is whether the district judge abused her discretion. We think not. On
the one hand, as plaintiff observes, straight dismissal disappoints plaintiff's pre-Buckhannon
expectations about recovering attorneys' fees. But on the other hand the defendant did not agree
either to pay attorneys' fees or to submit to continuing supervision by the federal judiciary.
Under the circumstances, the district judge thought, the choice had to be between a straight
dismissal and an order vacating the settlement and restoring the case to the docket for decision
on the merits. Plaintiff did not seek vacatur, which would have required him to repay all benefits
received under the settlement. That left dismissal, with the consequence that plaintiff keeps all of
the relief that the settlement provides but must pay his own legal costs.

                                                                                      Affirmed.
