Manuel De Jesus Ortega Melendres, on behalf of himself and all others similarly situated; Jessica Quitugua Rodriguez, on behalf of themselves and all others similarly situated; David Rodriguez, on behalf of themselves and all others similarly situated; Velia Meraz, on behalf of themselves and all others similarly situated; Manuel Nieto, Jr., on behalf of themselves and all others similarly situated; Somos America, Plaintiffs-Appellees,
v.
Maricopa County, Defendant, United States of America, Intervenor-Plaintiff-Appellee,
v.
Gerard A. Sheridan, Movant-Appellant.
D.C.
No. 2:07-cv-02513-GMS
Dennis
I. Wilenchik and John D. Wilenchik, Phoenix, Arizona, for
Movant-Appellant.
Stanley Young, Covington & Burling LLP, Redwood Shores,
California; Tammy Albarran, Covington & Burling LLP, San
Francisco, California; Kathleen E. Brody and Brenda
Muñoz Furnish, ACLU Foundation of Arizona; Cecilia D.
Wang, ACLU Foundation Immigrants' Rights Project, San
Francisco, California; Anne Lai, Irvine, California; Julia
Gomez, Mexican American Legal Defense and Educational Fund,
Los Angeles, California; for Plaintiffs-Appellees.
Before: J. Clifford Wallace, Susan P. Graber, and Marsha S.
Berzon, Circuit Judges.
SUMMARY[*]
Civil
Rights/Attorney's Fees
The
panel granted in part plaintiffs' motion for
attorney's fees on appeal pursuant to 42 U.S.C. §
1988(b).
Plaintiffs
had obtained an injunction against defendant in an action
under 42 U.S.C. § 1983. Melendres v. Arpaio,
784 F.3d 1254, 1267 (9th Cir. 2015). Gerard Sheridan, a
now-retired employee of defendant, appealed from the district
court's finding that he committed civil contempt by
disobeying the injunction. After Sheridan filed his opening
brief, the panel granted plaintiffs' motion to dismiss
Sheridan's appeal for lack of standing. Plaintiffs then
sought attorney's fees under 42 U.S.C. § 1988(b) for
services performed in connection with the appeal.
The
panel held that plaintiffs were "prevailing
part[ies]" within the meaning of section 1988 in every
sense. They succeeded in obtaining an injunction in the
district court and succeeded in dismissing Sheridan's
appeal from the district court's finding of contempt for
violating the injunction. That the panel dismissed
Sheridan's appeal for lack of standing rather than on the
merits did not, as Sheridan asserted, divest plaintiffs of
prevailing party status. The panel therefore granted
plaintiffs' application for attorney's fees and costs
related to Sheridan's dismissal. Because, however,
plaintiffs did not succeed in opposing Sheridan's appeal
on the merits, the panel declined to award them fees for
preparing the answering brief. The panel referred the matter
to the Appellate Commissioner to calculate the amount of
reasonable attorney's fees and non-taxable costs to award
plaintiffs consistent with this order.
ORDER
Plaintiffs
obtained an injunction against Defendant in an action under
42 U.S.C. § 1983. Melendres v. Arpaio, 784 F.3d
1254, 1267 (9th Cir. 2015). Sheridan, a now-retired employee
of Defendant, appealed from the district court's finding
that he committed civil contempt by disobeying the
injunction. After Sheridan filed his opening brief, we
granted Plaintiffs' motion to dismiss Sheridan's
appeal for lack of standing. Plaintiffs now seek
attorney's fees under 42 U.S.C. § 1988(b) for
services performed in connection with the appeal. We grant
the award in part.
Plaintiffs
are "prevailing part[ies]" within the meaning of
section 1988 in every sense. 42 U.S.C. § 1988(b). They
succeeded in obtaining an injunction in the district court
and succeeded in dismissing Sheridan's appeal from its
finding of contempt for violating the injunction. That we
dismissed Sheridan's appeal for lack of standing rather
than on the merits does not, as Sheridan contends, divest
Plaintiffs of prevailing party status. See Sotomura v.
Cty. of Hawaii, 679 F.2d 152, 152 (9th Cir. 1982)
(order) (holding plaintiffs were prevailing parties,
"even though they prevailed by obtaining dismissal of
the appeal as untimely rather than affirmance on the
merits"); accord Ford v. Bender, 768 F.3d 15,
31 (1st Cir. 2014) (holding plaintiff was prevailing party,
even though plaintiff obtained dismissal of the appeal as
moot, because judgment was not moot when issued by the
district court); Murphy v. Fort Worth Indep. Sch.
Dist., 334 F.3d 470, 471 (5th Cir. 2003) (same);
Young v. City of Chicago, 202 F.3d 1000, 1000-01
(7th Cir. 2000) (same). Our dismissal contemplates no future
proceedings involving the merits of the contempt finding that
could change the favorable result obtained by Plaintiffs
below. Sotomura, 679 F.2d at 153. Plaintiffs are
prevailing parties under section 1988.
Sheridan
further argues that Kentucky v. Graham, 473 U.S. 159
(1985), stands for the proposition that a non-party may not
be liable for a fee award under section 1988. We do not read
Graham so broadly. Graham held that a
government entity could not be vicariously liable for a fee
award when plaintiffs prevailed in a lawsuit against its
employees in their personal capacities. Id. at
167-68. After the entity's dismissal on Eleventh
Amendment grounds, it was a non-party and did not actively
participate in the litigation. Id. at 162. By
contrast, Sheridan disobeyed the injunction entered in the
underlying litigation. He actively inserted himself into the
litigation by appealing the contempt finding in the hope of
clearing his name. We and our sister circuits have held that
non-party contemnors may be liable for attorney's fees in
other contexts. Portland Feminist Women's Health Ctr.
v. Advocates for Life, Inc., 877 F.2d 787, 789-90 (9th
Cir. 1989) (holding non-party contemnors liable for
plaintiffs' attorney's fees incurred in bringing
contempt proceeding as a remedial sanction); see also
Gen. Ins. Co. of Am. v. E. Consol. Utils., Inc., 126
F.3d 215, 220 (3d Cir. 1997) (affirming award of
attorney's fees from non-party contemnor);
Waffenschmidt v. Mackay, 763 F.2d 711, 726 (5th Cir.
1985) (affirming award of attorney's fees from non-party
contemnors because they aided and abetted the defendants in
violating the court's injunction). There is no reason to
treat an award of fees under section 1988 any differently.
Therefore, we grant Plaintiffs' application for
attorney's fees and costs related to Sheridan's
dismissal.
Plaintiffs
also seek fees for preparing an answering brief that they
never filed, having instead prevailed in their motion to
dismiss. We may award fees only for work "expended in
pursuit of the ultimate result achieved." Hensley v.
Eckerhart, 461 U.S. 424, 435 (1983) (internal quotation
marks and citation omitted). Because Plaintiffs did not
succeed in opposing Sheridan's appeal on the merits, we
award them no fees for preparing the answering brief.
We
refer this matter to the Appellate Commissioner to calculate
the amount of reasonable attorney's fees and non-taxable
costs to award Plaintiffs consistent with this order. Any
such award is ...