Manuel De Jesus Ortega Melendr v. Paul Penzone

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL DE JESUS ORTEGA No. 16-16663
MELENDRES, on behalf of himself
and all others similarly situated; D.C. No.
JESSICA QUITUGUA RODRIGUEZ, on 2:07-cv-02513-
behalf of themselves and all others GMS
similarly situated; DAVID
RODRIGUEZ, on behalf of themselves
and all others similarly situated; ORDER
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,
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-Appellee,
v.
MARICOPA COUNTY,
Defendant,
v.
GERARD A. SHERIDAN,
Movant-Appellant.
2 ORTEGA MELENDRES V. SHERIDAN
Filed January 4, 2018
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ORTEGA MELENDRES V. SHERIDAN 3
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.
COUNSEL
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.
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.
4 ORTEGA MELENDRES V. SHERIDAN
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
ORTEGA MELENDRES V. SHERIDAN 5
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.
6 ORTEGA MELENDRES V. SHERIDAN
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 subject to reconsideration by this panel.
See Ninth Cir. R. 39-1.9.
REFERRED TO THE APPELLATE
COMMISSIONER